Today in History (1945) - Adolf Hitler and Eva Braun commit suicide after being married for one day. Eleven years later, Anton LaVey founds the Church of Satan. And in unrelated news, happy 71st birthday to Willie Nelson!

If I'm not mistaken, it says "to the bigot upstairs. that's what you think!" Judging by the inspired choice of words, I conclude that the author was writing a haiku, but failed to finish. My sense of justice compels me to complete the unfinished business:

to the bigot up-
stairs. that's what you think! beotch,
the bigot expired!

I know, it doesn't produce quite the epiphany the author was going for, but I can hardly imagine the conflict and passion that set the author to writing in the first place.

Today / April 30

Today in History (1945) - Adolf Hitler and Eva Braun commit suicide after being married for one day. Eleven years later, Anton LaVey founds the Church of Satan. And in unrelated news, happy 71st birthday to Willie Nelson!

April 29, 2004

Fastest Way to Fifteen Minutes of Fame

Rinse. Repeat. Beats the leading competitor, "Live in your school library and blog about it," by several months of inconvenience.

I say "Rinse. Repeat," because the website for the Universty of Massachusetts at Amherst's Daily Collegian is experiencing such massive traffic that, at the time I am writing this, it asks people to come back later. With such a boost in notoriety, the Collegian's editors are likely to see this as a successful experiment in fostering debate, instead of as the automatic reaction people have to a verbal kick in the groin.

For those who are wondering and haven't heard already, the editorial is by Puerto Rican UMass graduate student Rene Gonzalez, who calls former NFL player and killed-in-Afghanistan soldier Pat Tillman an idiot under the headline, "Pat Tillman is not a hero: He got what was coming to him." Predictably, the rant of a single young man is now being generalized as the opinion of every person identifying as anti-war or liberal.

At least the moderator at Lucianne.com quickly noticed and shut down a thread that featured people wishing Gonzalez in hell, etc. Though rarely a beacon of rationality, Lucianne.com does have the sensible policy of not permitting posts from college publications. Its rules require that articles be from "legitimate on-line newspapers, magazines or news sites only." While this may shut out some useful and interesting pieces from sources deemed illegitimate, such as college publications, it limits the death threats to being made against fairly mainstream writers such Paul Krugman.

Gonzalez himself appears to have gotten a quick lesson in the consequences of being rude to a U.S. soldier killed in action, especially in a war that the vast majority of Americans support, judging by the response now automatically sent to everyone who e-mails him. It can be found at the end of this post.

April 28, 2004

Today / April 29

Today in History (1974) - President Richard Nixon announces the release of edited transcripts of White House tape recordings related to the Watergate scandal. Thirty years later, President George W. Bush and Vice President Richard Cheney appear before the commission investigating the Sept. 11 terrorist attacks.

Today / April 28

Today in Communist History: 1965 - U.S. troops land in the Dominican Republic to "forestall establishment of a Communist dictatorship" and to evacuate Americans. 1977 - The Red Army Faction (Baader-Meinhof Gang) trial ends, with three members found guilty of murder and attempted murder. 1978 - Afghanistan President Mohammed Daoud Khan is overthrown and assassinated in a coup led by pro-communist rebels.

April 27, 2004

Federal Courts

I've had plenty of symptoms for two years now, but having just finished a grueling Federal Courts final only to find that I really miss the class already, the diagnosis is unmistakable: Law Geek. There are far too many good reasons to study federal jurisdiction, but perhaps chiefly among them is the awesome privilege of understanding what is among the most amazing things ever written in a law journal: Henry Hart's Dialogue (yes, the Platonic kind) on congressional control of the federal courts. Most of it requires background knowledge, but it's frequently punctuated by lovely bits of legal philosophy, like this gem, which I think many De Novo readers would enjoy:

The deepest assumptions of the legal order require that the decisions of the highest court in the land be accepted as settling the rights and wrongs of the particular matter immediately in controversy. But the judges who sit for the time being on the court have no authority to remake by fiat alone the fabric of principle by which future cases are to be decided. They are only the custodians of the law and not the owners of it. The law belongs to the people of the country, and to the hundreds of thousands of lawyers and judges who through the years have struggled, in their behalf, to make it coherent and intelligible and responsive to the people's sense of justice. And so, when justices of the Supreme Court sit down and write opinions in behalf of the Court which ignore the painful forward steps of a whole half century of adjudication, making no effort to relate what then is being done to what the Court has done before, they write without authority for the future. The appeal to principle is still open and, so long as courts of the United States sit with general jurisdiction in habeas corpus, that means an appeal to them and their successors. [66 Harvard Law Review 1362, 1396]

The unfortunate cynicism I've learned in law school gives me pause to appreciate the profound dialectical optimism of this passage, but I suppose, in the long run, I too think the law grows more just, and that change is not merely change, but growth. I wonder, nevertheless, how a judge possessed of what Professor Solum has called "the virtue of justice" would read this passage.

My First Oral

Today I attended my first Supreme Court oral argument, Cheney v. U.S. District Court for the District of Columbia. Despite the less-than-exciting issues involved (separation of powers, jurisdiction), the case drew a decent crowd. I would have thought that the vice-president's being involved would have brought more people out, actually, and initially just drove by to see how long the line was, figuring that the people who reportedly "began lining up the night before" would be a large group. Coincidentally, as I drove down Constitution Ave., I saw ducks walking in the grass along the sidewalk. This struck me as a propitious sign for my getting into the courtroom.

I've unsuccessfully tried to attend oral arguments twice previously, so I was excited to get inside, particularly as one of the last dozen people seated. I stowed my belongings in the locker room and took my place on a chair at the back. The courtroom features several long benches, both in the middle and on either side, and then additional chairs wherever they can be squeezed in.

As often happens while waiting to get inside the Supreme Court, the people in line had bonded and we talked in whispers in the half hour before the justices arrived. A gentleman seated behind me pointed out that Solicitor GeneralTheodore B. Olson, who as the administration's counsel was arguing for Cheney, was wearing tails. This is not an affectation peculiar to Olson; according to an interview, advocates traditionally wear formal attire to argue before the Supreme Court. Before the arguments started, several members of the Illinois state bar, including Cook County Judge Robert W. Bertucci, were admitted to that of the Supreme Court.

Each of the justices who participated heavily seemed to have their own idea about what was important in the case. Scalia focused mainly on what made someone a member of a government commission. His own view, which he stated clearly and repeatedly, was that anyone who had a vote was on the commission. If non-governmental employees such as Ken Lay of Enron had a vote, they were members of Cheney's task force; if they didn't have a vote -- regardless of whether or not anyone else did -- then they weren't members, de facto or otherwise.

Breyer was surprisingly mean to the attorney for Judicial Watch Inc. When Orfanedes tried to argue that non-governmental employees could influence policy strongly even without having a formal vote, the justice said that Congress, in passing the Federal Advisory Committee Act, could not have intended government to develop policy in a cocoon. Orfanedes began to reply, "I don't think--" and Breyer interrupted with, "That's right, you don't think."

I found the justices' hypotheticals about cocoons and such to be a bit silly. FACA, as one might guess from its name, applies only to committees, and a phone call from a cabinet member does not create a committee. Moreover, Judicial Watch & Co. are not saying that these committees should have their access to private individuals limited, only that substantial contributions from non-governmental employees make those people de facto committee members, and thus their identities should be known to a public that did not elect them nor hire them.

Olson's spectre of non-stop lawsuits to have this information disclosed also was excessive. The executive branch presumably has a limited number of formal committees, and a limited number of people outside the government who strongly affect what those committees come up with. Moreover, to pretend that "there is no such thing as a de facto member" stretches credulity. Merely because certain people are not named to the government commission does not mean that they do not have as much as, or more, influence than those whose names are listed.

Of course, the fundamental basis of the lawsuit is the Sierra Club's pique at having environmental groups shut out of the decision-making process while energy industry executives were consulted. Sierra is fine with having private individuals and organizations lobby the government and try to affect policy -- heck, that's the business they're in. What bothers them is the secrecy and one-sidedness of the Bush Administration's invitations. If the cocoon is one extreme, having policy written by the industry affected by it, with little or no moderating influence by public interest groups, is the other.

O'Connor and Ginsberg directed their questions mostly to what the government did wrong in this case, whether by commission or omission. The former wanted to know why the government wasn't directly challenging the constitutionality of FACA, and the latter was puzzled by the government's partial compliance with the FACA request if the Administration's position truly is that the original lawsuit is illegitimate.

Unsurprisingly, Justice Thomas was quiet throughout oral arguments. At the beginning he was leaning back in his chair, his head also tipped back, but a couple of minutes into Olson's argument someone handed him something and he abruptly sat up, put on his glasses and paged through it. It didn't seem to produce any questions, though; by the end of Olson's time, Thomas was back to leaning.

Stevens was the first to posit the aspect of the case I found really head-scratch-worthy: What relief do Judicial Watch and the Sierra Club seek from winning this lawsuit? Olson claimed that the discovery -- the turning over of information in order to fight the case -- is "vastly broader" than what they would have gotten if the government had simply complied with the FACA request. In other words, just by getting the tools they claim to need to pursue the suit, they will have gotten what they wanted in the first place: Cheney's records. As Souter put it, is discovery inherently the win?

Hillary Clinton's 1993 health care task force had to turn over its records because the First Lady was deemed not to be a government employee, and thus her committee fell squarely under FACA simply by virtue of her being on it. Though Clinton was mentioned briefly, Cheney's case is different. The vice president obviously is a government employee, and the official administrative record shows only other government employees as being on the energy task force.

Incidentally, Olson's long experience becomes very appreciable when seeing him during oral arguments. He never became visibly flustered, and always spoke in a calm, even tone, addressing justices by name. Morrison, the attorney for Public Citizen, was far more excitable; he would raise his voice and refer to the justices simply as "Your Honor." Possibly he was concerned that he would be mildly rebuked, as some advocates have been in the past, for getting the justices mixed up with each other.

At the end of arguments, when I walked past the enclosure where the organizations suing Cheney were holding a mini-press conference, a duck was splashing around in the fountain. How it got there (brought by the Sierra Club?) is a mystery to me. During that conference, someone asked one of the attornies if he thought Scalia had treated him fairly. The attorney gave the sensible answer that while he still thought Scalia should have recused himself from the case, the justice had acted without prejudice during oral arguments.

Will Blog For Home

Well, it hit the NYTimes today. Homeless@NYU is now and forever Steve Stanzak. Bobst Boy, after the library's name, was so much more exciting. The Times recounts his:

curious story of his last eight months as a homeless sophomore at New York University, sleeping six hours a night in the subbasement of the Bobst Library, showering in the gym or at friends' apartments, doing his homework at a nearby McDonald's and subsisting mostly on bagels and orange juice.

As he put it on the Internet, where he has spent four or five months recounting his adventure, it was "the tale of a penniless boy and his quest to gain a college education."

Once NYU officials found his blog, they kicked him out of the library -- but gave him a free room in the dorms.

The Washington Square News, which "broke" the story (how can you "break" a story that's already being blogged about?) yesterday. Its editorial today sums the matter up with the cheesiness only a college newspaper editorial can use with such abandon:

We applaud him for not only beating the system and living in one of the most expensive cities in the world for free, but also for doing it with style and flair -- all the while entertaining his many fans with his tale of lighthearted vagrancy.

April 26, 2004

Invisible Adjunct

Courtesy of Volokh, this article about The Invisible Adjunct, an adjunct professor with what apparently is a very cool website, although I haven't read it (yet), so I'm just trusting the archives. She just shuttered it last month after deciding to leave academia. The article implies that if she only revealed who she was it might help her get a job but she thinks it'd be seen as a negative. Obviously, (1) having not read the site, and (2) having no idea how academic hiring works, I have no idea. But interesting article that, like it did for me, may get you to want to read the site, if you haven't been reading all along.

Law School In The News!

The New York Times had an short article yesterday entitled "If You Went Here, You'd Be Sitting Pretty Now," about how top law firms concentrate their hiring among graduates of top law school. The article, which won't provide anything new to any law students but I suppose it's interesting for people unfamiliar with this stuff, credits Prof. Brian Leiter of the University of Texas with "develop[ing] a formula to determine which law schools placed the largest percentage of graduates at top national firms." I thought it kind of funny that it then credits him with "[finding] 110 Harvard law graduates, 88 Columbia graduates, 59 N.Y.U. graduates and no other school with more than 30 lawyers at [Sullivan & Cromwell]" as if it took more to "find" that than to go their website and count, but whatever, I'm nitpicking. The moral of the article is don't go to law school unless you want to be a lawyer, and don't go to a crappy law school if you want to work for a non-crappy firm, although they say it nicer. "Michael Young, dean of George Washington University's law school, puts it more bluntly: 'Law is possibly a route into politics, business, etc., but it's not a sure route by any stretch. The vast majority of people who start in the law die in the law.'"

April 25, 2004

Today / April 26

Tastes Great! Less Filling!

The Sunday NY Times Book Review reviews Bush advisor Karen Hughes' memoir, basically saying it's campaign paraphenalia that lionizes the President and reveals nothing new, nothing insightful, and nothing much of interest at all. What a shocker. Imagine -- someone very loyal to -- and still on the payroll of -- a sitting President would write a book that doesn't really bash him. I'm unclear who decided this would make a worthy book, anyway -- although I guess you put the President's name on a book and someone will buy it. Interesting review. Will leave you completely uninterested in reading the book, but that's ok.

Other useless memoirs that would be funny if they're not already in a bookstore near you:
--Simon Cowell's book about how great American Idol is
--Randy Jackson's competing book about how great American Idol is
--Donald Trump's book about how great Donald Trump is
--Mark Burnett's book about how great reality television is

How Many Miles Should We March?

Much as I support the cause, I am unmoved by protests. I'd say that I'm not inclined toward activistism, but by virtue of the dedication some people put into protesting, I'm convinced this is a sort of career track on which I'm not set. So, no, I'm not in the business.

Certain activists notwithstanding, attending protests is not a career track. In my life, I've attended two or three, with different results for each.

I went to the Code Pink antiwar rally last year because it was on a nice spring day and I've never learned how to say "no" to my old residence advisor from college. Obviously, my participation had little to no effect; the United States invaded Iraq on the now-groundless basis of eliminating its weapons of mass destruction, and on the "you break it, you buy it" principle, the U.S. must remain until the country is stabilized.

In summer 2000, I attended a vigil in front of the White House to protest the U.S. government's inaction in getting an alleged killer extradited from India. This guy was accused of killing his female cousin and then fleeing to India, where he was being protected by his influential family.

I do think that vigil made a difference; it heartened the victim's sister to know that she had our support, and it showed that people cared and would put in the time and effort to lobby on the issue. Ultimately, the government successfully extradited the accused murderer and put him on trial.

Based on my limited experience, protesting the Bush Administration's policies via massive street marching and rallies is not effective. I considered attending the March for Women's Lives mainly because my younger sister would be there, but decided against it after waking up tired and seeing an overcast sky.

Despite being, like Kriston, a supporter of the cause, I do not see any reason for me to put my political energies into marching. Indeed, this may be a general rule for large street protests; I suspect that the effect of being loud and disruptive annoys more undecided people than it converts. It becomes an exercise in self-affirmation and preaching to the choir.

While not criticizing anyone who does decide to march, I personally do not need the feeling of knowing that I am one of many who hold a particular opinion, nor do I need to hear the speeches. I already know that millions of Americans disagree with the Bush Administration's policies toward women. Joining a cast of thousands on the Mall is unnecessary evidence of that.

I already know that the Bush Administration is wrong about women's health, most undeniably in its yanking $34 million in Congressionally approved funds for UNFPA, thus removing access to contraception (which prevents abortions by preventing unwanted pregnancies) and pre-natal and post-natal care for thousands of poor women in developing nations. He did so to pacify conservative groups who continue to affirm -- despite a State Department fact-finding group's report to the contrary -- that UNFPA takes part in government-coerced abortions in China.

Nor is a march, even of a million people, going to change Bush's mind, particularly when the march is being over-simplified as a "Rally for Abortion Rights" by the front page of the New York Times online. Although there is variability in the particulars (permissibility of abortion for viable fetuses, use of dilation and extraction, exceptions for maternal health or for rape and incest, etc.), most people's broad opinions about abortion are already set. The sight of many people chanting slogans in favor of its legality won't alter those opinions.

Of course, this is even more true of the deluded Mick Greineder of Lancaster, PA, who, according to the Washington Post,

yelled at the abortion rights marchers, "Choice kills. Choice kills." Although his voice was hoarse Greineder said he would continue to scream until he couldn't scream any longer.
"I think some of them can hear me," the 55-year-old engineer said. "If I scream at 700,000 and I get one or two people to change their mind, it's worth losing my voice."

My opinions on many controversial matters, including abortion, have changed over time, but a middle-aged guy screaming two words over and over has never played a part in those changes, except perhaps to make me think, "If the opposition is that dumb, I probably am right."

Admittedly, I didn't spend today in small group meetings lobbying the administration to change its UNFPA policy, or to change people's minds about abortion or reproductive rights or the 2004 election. But there's always tomorrow.

Clarifying Clarett's Case

My knowledge of football is somewhere between limited and non-existent, but a friend recently queried me regarding Maurice Clarett's lawsuit against the National Football League.

Q: Explain to me why the decision whether Maurice Clarett can enter this weekend's draft is up to Ginsburg and not the whole court?

A: Ginsburg handles emergency matters from the 2nd Circuit. She can grant or deny Clarett's emergency request or refer the matter to the full court.

Q: That’s a lot of power.

A: No more than the rest of the Court has. Each of them is assigned to a Circuit (some of them have more than one, as there's more circuits than justices), and having one justice deciding on emergency matters is easier than having the full Court do it.

In cases like Bush v. Gore -- which came up from a state court anyway -- you'd have to refer it to all nine, but Ginsburg decided that the lower court had done a Good Enough job in its ruling. If Clarett tries to appeal to the full court, I doubt he'll get the 4 votes necessary to make them look at the case.

Q: He passed on appealing to the full court. He went to district court, won, then the NFL appealed and won the appeal, and then he went to the Supremes and the appeal was upheld. I know the Supremes affirmed it and that means they don't need grounds, but why was the lower court's ruling overruled in the first place?

A: It wasn't an overturn of the lower court ruling; it was a stay of the ruling, meaning it wouldn't take effect until it was upheld by another court. He went to court and got U.S. District Judge Shira Scheindlin to make him temporarily eligible for the draft. The NFL requested a stay from Scheindlin, she denied it, the NFL went to the 2nd Circuit, the 2nd Circuit granted it, Clarett appealed and Ginsburg upheld the 2nd's decision, as did Stevens.

Q: On what legal grounds did Judge Scheindlin make him eligable?

A: According to her decision, the league must allow Clarett to enter the draft because its eligibility requirement -- that a player must be three years removed from high school -- violates the Sherman Antitrust Act. She said the league's claim that young players could be harmed by pursuing a professional football career prematurely was superseded by concerns about the marketplace operating fairly and efficiently.

Q: And the 2nd Circuit said what?

A: 2nd circuit gave a stay that would keep Clarett out of this weekend's draft, saying that the supplemental draft would be good enough if Clarett eventually prevailed.

That was as much as my friend wanted to know, but De Novo readers may be interested in the legal issue Scheindlin identified: "Should Clarett’s right to compete for a job in the NFL -- the only serious pro football game in town -- trump the NFL's right to categorically exclude a class of players that the League has decided is not yet ready to play?" This class of players is that which is less than three years out of high school.

This is not a problem of Clarett's wanting to violate standard labor laws; the 20-year-old is not a minor and will earn more than minimum wage while working in safer conditions than the average meatpacker. Instead, the NFL wishes to have a higher standard than current legislation in determining who is eligible to work for it.

The general response to the case has been that the NFL is doing the right thing, that 18-year-olds, eligible for nearly every other job in America, should not be allowed to play pro football. The NFL claims to have its restrictions in place for the players' own good. NCAA President Myles Brand said, as his organization filed a brief in support of the NFL's appeal,

If not reversed, [Scheindlin's] decision is likely to unrealistically raise expectations and hopes that a professional football career awaits graduation from high school and that education can therefore be abandoned. The result could be a growing group of young men who end up with neither a professional football career nor an education that will support their life plans.

Leave aside the natural skepticism one feels toward this statement, in light of the scandalous state of most student-(could go pro) athletes' educations. Even if the NFL and the NCAA truly were doing their best to ensure that future professional athletes were well-educated and had solid alternatives to playing sports, their attitude is highly paternalistic.

After all, a parallel argument was made in keeping women from working at all, or working more than a certain number of hours, or working in certain jobs. This was all for their own good. While sex discrimination is more problematic than age discrimination -- we'll all be young and we all hope to be old someday (as the the alternative to being elderly is being dead), but we won't all be female -- there are nonetheless similar attitudes of "We know what's best for you."

Even if one concedes that people just past their teens, without education beyond high school, ought to be kept out of certain positions, one must face the fact that we put people of that type in some of the most hazardous jobs possible. Several columnists have pointed out that as a 20-year-old high school graduate, Clarett could go to Iraq to kill and be killed. Yet he is considered insufficiently mature to play what is, despite all its physical demands and risks, merely a game.

Today / April 25

April 24, 2004

Today / April 24

In 1916, the Easter Uprising, an Irish rebellion, begins; in 1975, the Baader-Meinhof Gang blow up the West German embassy in Stockholm; in 1980, an attempt to rescue the American hostages from the embassy in Tehran ends with eight American servicemen dead and no hostages freed; in 1993, an IRA bomb devastates City of London; and in 1996, the Antiterrorism and Effective Death Penalty Act of 1996 is introduced in America.

Now You Need a Tattoo

People who wear low-slung pants that expose skin or "intimate clothing" would face a fine of up to $500 and possible jail time under a bill filed by a Jefferson Parish lawmaker.

While I've advocated voluntary self-regulation in the wearing of low-rise pants, an actual law, with or without penalties, is obviously silly. On the other hand, I don't see any constitutional barrier to it. The head of the Louisiana ACLU "said the bill probably does not meet the U.S. Supreme Court's standard for the prohibition of obscene behavior under the First Amendment," but why would the First Amendment come into play at all?

Unless low-rise pants are inherently expressive, or a person is using them in an expressive way, they do not clearly have First Amendment protection. They lack even the content of obscene materials; they are simply a style of clothing. Indeed, whether a particular pair of pants qualifies as "low-rise" depends to some degree on the wearer's torso proportions.

Until all the low-rise pants wearers get something expressed on their exposed skin or underwear, thus making the pants necessary to their speech (unless the legislature wants people to go around with no pants at all), the bill should have no constitutional problems.

Today / April 23

Today in History (1968) - Columbia University students protesting the Vietnam War take over administration buildings and shut down the university. Seven years later, at Tulane University, President Gerald Ford states that the war is over as far as the United States is concerned.

April 22, 2004

Today / April 22

Define "Law Professor" Please. Seriously.

Some random website that Instapundit points to wants to identify (through the tainted sampling of email solicitation) the 100 most influential law professors, as voted on by law students, law professors, and law school admins.

Consider: If you were conducting a poll for which most of the responding group were legally trained, you'd probably want to avoid major equivocation, yeah? If so, then I wonder why the poll has failed to define "law professor."

Must the professor be alive? That would exclude the hugely influential Christopher Columbus Langdell (pioneer of the case method and major force in legal formalism), among many, many others. May the professor have gone on to become a judge? (Richard Posner, Oliver Wendell Holmes, countless other members of the Supreme Court, etc., etc.) To push this inquiry into silliness, how about fictional professors (who may have been inspired by real ones) like Professor Kingsfield from The Paper Chase, who, since the seventies, may have influenced more students' decisions about going to law school than any other professor?

April 20, 2004

College Admissions Camp!

The New York Times has an article about new summer camps for kids preparing to apply to college:

Those who went to the company's pilot programs last summer said it was both useful and fun... "I learned not to be so fidgety, and not to touch my hair."

Oh, yes, that does sound like fun. For just $2700 for an eleven-day program, kids can take practice SATs, tour college campuses, and participate in mock interviews, as they try to fulfill their parents' fantasies of getting into a better college than they ought to and take the first step toward a dysfunctional adulthood. Naw, I'm exaggerating. But it still sounds a little messed-up.

Shit-Talking

I appreciate a good cuss word as much as the next fellow, and "shit" is especially valuable for humor, but I'm not about to challenge FCC regulations for reasons that Matt Yglesias puts forward:

The problem with having people say "shit" on television is, or so I hear, that it's "bad for the children." But what's bad about well [sic]? Well, I suppose that if children hear people saying "shit" all the time on TV that might encourage them to go around saying "shit" more often. And that would be bad, because it's often inappropriate to say "shit." But if everyone said "shit" regularly, then there would be nothing inappropriate about saying it. The word's inappropriateness is a matter of pure convention, not a magical intrinsic attribute of the syllable. So if we heard "shit" on TV all the time, people might start saying "shit" all the time and there wouldn't be a problem with hearing "shit" on TV. See what I mean?

That would be pretty funny, but our profanity conventions aren't about to collapse under a revolution in children's vernacular. Parents and teachers, of course, would punish "shit" talkers, and even sympathizers with Matt's view, I imagine, would hesitate to take the first step by using "shit" more freely than is appropriate. Such is the self-enforcing power of conventions, even when there's no intrinsic basis. If everyone, all at once, agreed to liberate "shit" from its stigma, I suppose that'd be nice, but I don't think the FCC has that kind of power. And maybe, if everyone was doing it, we'd all agree that a friendly pat on the face should replace the handshake, but I'm not about to start an interview by touching some guy's face.

UPDATE: ubiquitous "shit" saying is exactly the scenario in the South Park episode I'm watching right now. Catch the rerun if you can.

Rule of Law

All this talk of "Technicalities" has put me in the mood for legal theory. The first problem with defending or rejecting a judicial result based on a technicality is that “technicality” doesn’t have a very specific meaning. It’s sometimes used rhetorically to argue that one’s opponent is relying on the letter but not the spirit of the law, or that a theory advocates some result that appears to be outside the law’s purpose, even if it’s within the law’s mandate. So if a criminal defendant argues that his confession was “compelled” by an overwhelming sense of guilt and civic duty, suppressing that confession under the 5th Amendment would certainly be an instance of “getting off on a technicality” that one should disapprove (I know, this example is extreme, but you get the idea).

But some cry “technicality” when the law does precisely what it’s supposed to do at the momentary expense of justice. If our defendant—though guilty as sin—had been forced to take the stand and speak (or face contempt penalties), we ought to say that any incriminating testimony should be thrown out, regardless of guilt, to preserve the function of the 5th Amendment, for better or worse, because fidelity to our Constitution requires that we set free the guilty sometimes in order to minimize unjust law enforcement.

So the rule of law certainly doesn’t depend on the first kind of technicality—which I doubt Will Baude meant to argue—and I’d even suggest that it doesn’t absolutely depend on the second type, either, at least with respect to non-constitutional technicalities. As I understand it, courts often sidestep some of the finer points of procedure when strict adherence seems pointless. And technicalities, in judge-made law, are revised (and even jettisoned) all the time by higher courts. The very fact that trial judges are given a great deal of discretion over evidentiary matters is an indication that hyper-technical regimes of finely tuned rules for every occasion are not only very difficult to design properly, but are sometimes not worth the administrative burdens they bring.

April 19, 2004

Unreality TV

Employee #1: Did you see the last episode of The Apprentice?
Employee #2: Yes.
Employee #1: Who won?
Employee #2: Bill.
Employee #3: Yeah, and now he get's a $250,000 job. They call it "reality TV." Whose reality is that?
Employees #1 and #2: [Pondering]
Employee #3: Yeah.

The answer, of course, is "Bill's reality!" But the point I actually wanted to bring up--which is probably rather obvious--is that reality TV isn't about reality, because reality is generally too boring for TV. In some sense, all TV is "reality TV" because actors are actually in front of the camera, actually doing and saying the things we hear and see. The difference is simply that in reality TV, the events and people represented on camera are events and people that are not as strictly fictitious as a sitcom or a movie. But reality TV may as well be just as "scripted," even if actors aren't reading lines. Instead of mere words and ideas, actual relationships (financial and personal) and actual events become the elements manipulated by writers to produce what ultimately may as well be fiction. The reality TV fiction, however, as anyone who's seen "The Swan" would vouch, can indeed be stranger than fiction itself.

Today / April 19

Today in History (1993) - The 50-day siege of the Branch Davidian complex outside Waco, Texas ends when a fire breaks out. Eighty-one people die. Two years later, the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma is bombed, killing 168.

April 18, 2004

Captain Makes Ass of Self

Captain Clueless, like any responsible blogger, posted an update at the bottom of an entry to point out an error he made. Then some dude emailed the Captain to point out the error--you see, this dude hadn't read to the bottom of the post to see the correction because the Captain's entries tend to, shall we say, use a surprisingly large number of words considering the small amount of content delivered. So the captain, in an email exchange posted for the world to see, chewed this dude out for emailing a correction that had been duly noted. The captain's problem is too much email every time he makes a mistake. But the dude had objections to the Captain's tone, and wanted no more than a simple "thanks for the pointer, I corrected it." But now the Captain has shown us who's boss by asserting his American Liberty to run his blog how he pleases, including the liberty to respond to emails without the word "thanks."

It's one thing not to understand the rudiments of human interaction that most of us learn by third grade, but why would someone go to the trouble of writing over 2,000 words — including an email exchange! — that documents for the entire world that they do not, in fact, understand the rudiments of human interaction?

But I thought I'd just like to tell the Captain how to run his blog: just stick the UPDATE in right after the error, for goodness sakes! The alternative you've chosen (lecturing your readership on your perogative to be an ass) will only increase the flow of emails, this time, I imagine, featuring phrases like "you ass," and "man, you're an ass."

Today / April 18

Today in History (1983): A suicide bomber destroys the United States embassy in Beirut, Lebanon, killing 63 people, 17 of whom are Americans. Thirteen years later, over 100 Lebanese civilians are killed when the Israel Defense Forces shell the UN compound at Qana.

April 17, 2004

Air America Network

I read somewhere the other day that the Air America Network, the liberal radio network with Al Franken and Janeane Garofalo designed to compete with Rush Limbaugh and his fellow conservative radio talk show hosts, had missed some payments and was off the air in some big cities. The article also emphasized that Franken and his fellow hosts don't have much experience in radio and haven't been taking best advantage of the medium. I don't have a link for you. In fact, I only mention it because it gives me an excuse to try and be funny. Emphasis on "try."

The Air America Radio Network: Programming Schedule for Saturday April 17

6:00 AM -- "Liberal Morning," the show where radio personalities describe what they see as they watch the sun rise through a smog-filled sky made filthy by corporate polluters who get tax breaks.
8:00 AM -- Listen to a man who looks like George Bush get pies thrown at him.
9:00 AM -- Hear the sounds of endangered species over the radio dial for an hour.
10:00 AM -- Game Show: Who's More Liberal, with Ted Kennedy and Dennis Kucinich
11:00 AM -- Yelling at Republicans
Noon -- "Lunchtime on the Streets," the show where poor people complain that they have no food because the Republicans don't care about them.
1:00 PM -- Three hours of reminiscing about how wonderful Jimmy Carter was.
4:00 PM -- "The day the Republicans ended the world," a radio drama featuring the voices of Barbra Streisand and James Brolin.
6:00 PM -- "You may be eating dinner, but only if you're rich."
7:00 PM -- One hour of reflection: this week, we'll be listening for an hour to a tape of Michael Moore snoring.
8:00 PM -- Listen to someone throwing darts at pictures of Dick Cheney
9:00 PM -- Alternative Family storytime.
11:00 PM -- Obscenity, because the first amendment still exists. For now.

Today / April 17

April 16, 2004

Today / April 16

Today in History (2003) - The Bush administration lowered the terror alert level from orange to yellow, saying the end of heavy fighting in Iraq has diminished the threat of terrorism in the United States. Saddam Hussein expressed pride that, despite the success of the U.S. invasion and the civilian casualties it has inflicted, he still has killed far more Iraqis than President Bush.

April 15, 2004

Gay Marriage and "Equality"

The only plausible arguments left against gay marriage are those conceding that denial of marriage to gays is indeed discrimination, but it's discrimination that is justified for whatever reason (slippery slope, damage to the family, tradition, etc.). Arguments that attempt to cast the denial of marriage to gays as some kind of equal treatment are works of hollow casuistry and cannot be squared with Loving v. Virginia. Here's an example of such an argument, from Shelby Steele at TNR:

Because marriage is defined as a heterosexual institution, its exclusion of gay unions doesn't really qualify as a denial of rights. Gays have the same right to marry as heterosexuals as long as they marry the opposite gender [emphasis mine]

This stripe of argument is often spelled out like this: blocking gay marriage is not gender discrimination because both men and women are given the same options, namely, marry the opposite sex or marry no one. Hence, the treatment is equal. (Some would even argue that there is no sexual-orientation discrimination because gays and straights have the same right to marry the oppsosite sex.) Let me formalize the argument:

The law treats sex A and sex B equally because both have the same right to marry persons of the opposite sex.

Sounds facially plausible. But notice how that kind of argument would conclude that anti-miscegenation laws also provide equal treatment:

The law treats race A and race B equally because both have the same right to marry persons of the same race.

The only difference between the argument above (against gay marriage) and this one (against inter-racial marriage) is that "sex" is replaced by "race," and "opposite" is replaced by "same." If one really thinks that blocking gay marriage does not discriminate on the basis of sex, then one must also conclude that blocking inter-racial marriage does not discriminate on the basis of race. I suppose staunch advocates might say "fine, anti-miscegenation laws provide equal treatment too." But that's a normatively worthless meaning of "equal" and it's not the equal treatment of the 14th Amendment.

Who Is An Online Journalist?

Amusing as it as, I haven’t had time to do more than quickly read the symposium entries on our topic this week because I have been busy working on a paper and presentation about the Internet’s intersection with defamation law at 47 U.S.C. § 230. The statute provides some immunity to Internet “re-publishers.” For now, however, I thought I’d move closer to the source: Internet authors and the First Amendment—specifically, the Press Clause, and “journalist” status.

The implications of this status include, in many states and some federal circuits, a qualified privilege against compelled testimony, as well as the protections granted to journalists under federal law and regualtions (as were discussed recently in regards to the Scalia-marshal debacle).

A few years ago, when at the paper, I wrote an editorial about Vanessa Leggett. Leggett “ha[d] been researching the murder of the wife of a Houston ex-bookie, and federal prosecutors want[ed] her notes.” She wouldn’t give them up, and the U.S. Court of Appeals for the Fifth Circuit upheld a contempt order jailing her. As I wrote then:

Either Leggett is not considered a reporter by Ashcroft because she works free-lance and has not published a story on the murder—as Leggett's attorney claims—or the Justice Department has changed its standard for jailing reporters. Either way, this is an unacceptable federal intrusion on a free press.

Eventually, the grand jury disbanded, Leggett went free, and when the jury reconvened her notes were not re-subpoenaed. The “real” journalists—notably, the Reporters Committee for the Freedom of the Press, as well as others—fought for Leggett’s case. Throughout the amicus brief filed at the Fifth Circuit, Leggett was clearly referred to by the Reporters Committee as a journalist and reporter deserving of First Amendment press coverage. The head of the Reporters Committee, Lucy Daglish, said of Leggett in a news release: “Had this journalist not sought help from journalism organizations prior to being sentenced for contempt, she would have been secretly jailed as well.”

Enter Paul Trummel.

According to an article posted last week at USC’s Online Journalism Review, Paul Trummel is “a pugnacious nursing home resident whose online rants landed him in jail.” A Washington state judge jailed Trummel, like Leggett before him, for contempt—in this case, however, it was because he wouldn’t stop talking. Trummel was, it appears, a kind of nursing-home watchdog. Among other things, he reported his findings on a Web site, which the judge ordered to have any identifying information of nursing-home employees removed. When Trummel kept the information up but simply switched to a server in the Netherlands, the judge had him jailed. The judge has since refocused his ruling as to Trummel’s status as a “recalcitrant stalker,” but the question remains for my purposes as to whether Trummel is a journalist.

What did Lucy Daglish, defender of Vanessa Leggett (who had never published a story and worked for no press organization), have to say about Trummel’s “journalist” status? He’s not, at least as to this case. Online journalism, she said, “lower[s] the barriers to entry, increasing the number of people who can do journalism.” Here is her standard for who is a journalist on the Web:

"If someone calls and says they work for a Web site, and it covers a variety of issues, and has good distribution and there is a broad base of people interested in what they have to say, and they take an independent view of the issues, then yes, I would consider that journalism and I probably could provide assistance for you," she said.

"But if you have a Web site that is targeted at a specific group of people and the sole purpose of the Web site is retribution against those people, I don't think that is journalism. It doesn't mean you're not a journalist. It means that that particular product you're working on is not journalism. In other words, I look at what your purpose is."

Distribution? Interest? Daglish is wrong to base journalist status on what is, essentially, a success factor. What she is saying is that because it’s so easy to become a reporter on the Web, we’re only going to allow in some of the Web reporters—the ones with the most hits and in which people are the most interested.

Independent view? I don’t see how this standard could be used—even in traditional media—for determining whether someone is a journalist. Does this mean the Internet journalist has to report something unique to be covered? If so, then only the first newspaper to get a story is worthy of journalist status—and that includes all those local papers reprinting AP and NYTimes’ stories. Does it mean the news has to come from an independent source? If so, convergence has all but eliminated independent viewpoints from traditional media.

Finally, Daglish’s “sole purpose of the Web site” comment shows her lack of understanding about the low “barriers to entry” on the Web. Let’s say your town’s water supply is being polluted by the major employer in the town (who, incidentally, is also the top ad revenue generator for the one newspaper in town). You are a chemical engineer who understands water pollution; you test the water and report the findings on a Web site, www.CompanyXPollutesOurWater.com. Under Daglish’s “sole purpose” test, you’re out of luck.

The Web does decrease barriers to becoming a journalist, and that’s a good thing. A part-time or occasional journalist is as much a journalist for purposes of the First Amendment as Linda Greenhouse or Chuck Lane. If Daglish wishes to limit the scope of her organization (for financial or feasibility reasons), that’s one thing. But for Daglish—as the representative of all reporters—to announce a restrictive standard for who should be given the status of “journalist” is unacceptable.

Why would Daglish, as a defender of the press, not want an expansive reading of who should fall under its press protections?

Mosul ---

In his post about how the "Internet in general has had an amazing impact on daily life," Jeremy avoids discussing weblogs and mainly regards himself as a consumer of content, instead of as a creator. Yet part of the cultural importance of the Internet is how easy it has made publishing. Blogs may be the most popular form of dissemination, but one also can contribute to massive group projects such as Wikipedia.

When I checked Wikipedia this morning for something to put up in the "Today in History" feature, I noticed the last "Events" entry for April 15.

2003 - The Mosul Massacre. American troops opened fire on anti-US protesters in the northern Iraq city of Mosul, killing at least ten unarmed Iraqis.

The term "massacre" for what happened a year ago in Mosul is by no means used universally. If you Google mosul massacre, the first results are from a Marxism list and other self-identified socialist publications and liberal blogs. Typing mosul massacre into CNN's self-search only pulls up an article about Chemical Ali, the massacre being the one he allegedly ordered in a 1988 chemical attack on Kurds. The Washington Post also did not report on the event as a massacre.

Progressive Review writer Sam Smith amalgamates coverage from international sources here, with himself the only person calling it a massacre. Yet "massacre" is the word used by Wikipedia as well as a similar free encyclopedia site.

In short, here is a conflict between sources that consider themselves unbiased and authoritative. Obviously "massacre" is inherently loaded with meaning, but that does not prevent such sources from using it. Everything from the action taken by Chinese troops against Tiananmen Square demonstrators to British troops' violence against Amritsar protestors to British troops' firing on a crowd of American colonists has been described as a massacre. The essential elements of a massacre appear to be the deaths of multiple civilians who are overwhelmed by a stronger military force.

I don't know if the Mosul incident will go down in U.S. history as a rare instance of our military's committing what we are willing to describe as a massacre. (The main ones we do admit are the mass killings of Native Americans at various times and the My Lai destruction in Vietnam.) The point is that the Internet opens us up to the possibility of all becoming revisionist historians.

If Wikepedia becomes the first encyclopedia to which the schoolchildren of 2053 turn, then they will believe that a massacre occurred in Mosul. Yet Wikepedia does not require us to show any credentials to add entries to it, or to make modifications. It democratizes the writing of history, while also democratizing access to that history.

Although the digital divide continues to exist in America and the rest of the world, even it is slowly growing smaller. Villages in the developing world that do not have American encyclopedias do have a computer with internet access. The Internet versions -- because clearly there will be more than one -- of history may become the most authoritative, or at least most popular and widely-known.

Today / April 15

Today in History (1920) - Anarchists Sacco and Vanzetti allegedly murder two security guards while robbing a shoe store. And happy 125th birthday to poet Melville Henry Cane, who also was copyright lawyer to the likes of Sinclair Lewis, Upton Sinclair and William Saroyan.

Would Thomas Jefferson Have Surfed Porn Sites: An Internet Reflection

I read our symposium topic this time – Internet, Law, and Culture – and wasn’t sure what I wanted to write about. I figured we’d get some pieces on file sharing, which we have, and on Internet regulation, which we have, and I assumed we’d have something on weblogs and how they’ve transformed life as we know it, and the Internet is creating a whole new paradigm of communication – which we didn’t get, but I’m sure any number of writers out there have wonderful pieces on the topic that I could link to, or, even better, who can feel free to link to themselves in the comments.

I’m torn, as I sit here wanting to write something thought-provoking and interesting and compelling. Forget weblogs. The Internet in general has had an amazing impact on daily life. The amount of trivial knowledge I accumulate each day is frightening. The amount of topics I have a completely superficial knowledge of just because I read an article in the Kansas City Star or a paragraph on some company’s website, or a message board post written by an expert in whatever field it is – it’s mind-boggling.

Thomas Jefferson receives a great deal of well-deserved credit for somehow becoming a skilled architect, farmer, scientist, violinist, inventor, religious scholar, and – I’m forgetting one – political thinker, politician, founding father of a great nation, I don’t know, whatever the right words are. And he didn’t have the Internet. If he did, he’d have also become a competent physician (if I was a doctor, I’d buy the rights to funnyrash.com and make a killing charging people for dermatological creams based on whether it was red and itchy or brown and oozing or whatever else funny rashes do), a functioning lawyer (every statute and regulation is online somewhere), a literary critic (amazon.com), and, of course, a connoisseur of hardcore porn.

The Internet opens up all of these windows of knowledge I can’t imagine how people accessed thirty years ago. My grandmother can’t believe that I can check the price of the one stock she owns as the market’s trading. She’s flabbergasted that I can get the weather in any city around the world. She has no idea how I can send someone something and they can read it without me having to type it over again. And these aren’t even the things people who use the Internet think are particularly extraordinary.

So, like I said three paragraphs ago, I’m torn. I’m torn between writing this piece about how amazing the Internet is, and writing its companion piece about how the Internet gives us access to all of this new information we didn’t have access to before, but mostly that just gives us more stuff to talk and think about, and what do we really need it all for? It’s just mental clutter. Do I really need to read the sports section of all seven major New York-area newspapers to find out whether Cliff Floyd is going on the disabled list? (He is.) Do I need to know about the new modern art exhibit at a museum I won’t be visiting? Do I need to know what some random people in the middle of the country thought about Fantasia’s performance on American Idol? Not really.

But I can’t bring myself to really embrace the argument that it’s all pretty useless, because then I think about the cool stuff that the Internet enables. Being able to get to know people I otherwise wouldn’t, reading people’s thoughts and perspectives that force me to think and reflect and engage, feeling like the world is small and accessible instead of huge and impossible, being able to satisfy every craving for knowledge.

I don’t know what my point is really. Or if I even have one. Or if it even matters if I don’t. Maybe it’s this: I think life with the Internet is better than life without the Internet. But I want to know people’s feelings on the flip side. Who wishes it never showed up? Who wishes we still needed to pick up the phone to call someone and couldn’t just send an e-mail? Who misses card catalogs?

April 14, 2004

Why It's Called Same Sex Marriage

I was at an interesting wedding Saturday -- weddings, in fact, uniting a Jain woman and a Christian man, with a ceremony from each person's religious tradition. But not nearly as interesting as the wedding I missed Thursdaynight:

Big Gay Wedding
You are cordially invited to the wedding of Dan Savage and Amy Jenniges, a showcase of everything that's wrong with letting the gayest gay man in the Western tradition and The Stranger's token lesbian unite in holy matrimony. (They'd much rather marry their own boyfriend and girlfriend, respectively.) The joining of these two in the most unholy alliance ever sanctioned by the institution of marriage will be officiated by Reverend Wm. Steven Humphrey and celebrated by serenades from the flamboyantly talented likes of Sarah Rudinoff and Nick Garrison. Drinking will happen, cake will be sliced, dancing will ensue. It's a full-blown gay marriage, wedding dress and all, and to the horror of conservative naysayers, it's completely legal.

That wedding would have cost me a $10 donation to Lambda Legal, though, and the one I attended was free. It also was planned well ahead of the Savage-Jenniges union, which was invented earlier this year after a visit to the Seattle licensing office. (via girlfag and eclecticism):

I'm happy to have a "marriage license." It's not the marriage license I'd like to have, of course. But, still, let me count my blessings: I have a 10-year relationship (but not the marriage license), a house (but not the marriage license), a kid (but not the marriage license), and my boyfriend's credit-card bills (but not the marriage license). I don't know what a guy has to do around here to get the marriage license. But I guess it's some consolation that I can get a meaningless one anytime I like, just so long as I bring along a woman I don't love and my $54.

The Savage-Jenniges union may be over by the time you read this, as they planned to file for divorce in just a little more time than it took Britney Spears.

Who cares that you are queer? Certainly not the State, who doesn't care if you are gay, straight, rich, poor, or even if you are in love. This is called being treated equally, Dan. Thanks for illustrating that point so perfectly.

Actually, it's not being treated equally. Dan's boyfriend Terry is not being treated the same way Amy is being treated, because she can marry Dan and Terry can't. Amy's girlfriend Sonia is not being treated the same way Dan is being treated, because he can marry Amy and Sonia can't. This is blatant gender inequality.

Although everyone from Equal Rights Amendment advocates (who do not count President Bush in their number) to Eugene Volokh has disagreed with this view, the failure to recognize same-sex marriages is properly seen as sex discrimination, not sexual orientation discrimination.

Gay people can get married, and many have. Unfortunately, they've only been able to marry people of the opposite sex, which frequently results in making both spouses unhappy and causing divorce. So I'm definitely not urging anyone who's a lesbian to marry a man, or for that matter, urging anyone who's straight to marry someone of her own sex.

But marriage has been an option for gay people. There is no "are you straight?" test before granting marriage licenses. No one asked, and if a spouse did seem to be gay, or even engaged in homosexual behavior, it was deemed to be no one's business except that of the happy couple.

This distinguishes marriage discrimination from that involved in the workplace or hate crimes. People have been fired and murdered for being gay, but no one has been refused the recognition of his marriage because he is gay -- only because he wants to marry another man.

If I wanted to marry a female friend who lacks health insurance and who in return has agreed to care for my pet rabbit, explaining that I'm straight wouldn't convince the Commonwealth of Virginia to give us the benefits of marriage. The state discriminates against me not because of my sexual orientation, but because of the sex of the person whom I choose to marry.

BoifromTroy argues that Kerry's position on same-sex marriage is "is even more vile" than Bush's support of the Federal Marriage Amendment -- despite Kerry's vote against the 1996 "Defense of Marriage Act," despite his support for civil unions -- because Kerry has said that homosexuality is "in your genes" yet still opposes legalizing marriage between two people of the same gender.

Boi's view appears to be that Kerry's insistence on reserving the term "marriage" for man-woman unions, while giving all the rights and protections of the institution through civil unions, is worse than Bush's opposition to any recognition of same-sex partnerships because if someone believes homosexuality is genetic, then he must agree that homosexuals should be able to marry as they wish.

John A. Kalb challenges the idea that homosexuality is entirely genetic, noting that people "move back and forth too much," experimenting sexually with people of both genders. Many people consider themselves bisexual, attracted to men and women.

Moreover, basing acceptance of same-sex relationships on whether the participants are genetically fated to homosexuality is highly problematic. If I can be attracted to both people of the same sex and those of the opposite sex, should I be constrained to opposite sex relationships only? This is heterosexual supremacy, deeming opposite-sex relationships always preferable whenever possible.

If Dan Savage can feel a smidgen of sexual attraction to his temporary wife, that's hardly a justification for abandoning his partner and co-parent, even though some conservatives may encourage him to do so. As Andrew Sullivan has said, "Reducing people's relationships to mere sex is a subtle way of dehumanizing them." Same sex marriage, just like opposite sex marriage, ideally is not just about sexual attraction. It's about committment, first and foremost -- otherwise, why get married?

Sinclair: Holding Names Hostage

I’m working on a new website, but I can’t find a good name. The domain name gold rush of the late '90s has resulted in scarce availability of new domain names. Unlike gold, however, many of these names are grossly overvalued by their “owners” and thus have little chance of reentering the marketplace. This is frustrating.

The ability to share information with millions of others is one of the fundamental attributes of the internet. In many cases, this attribute has been the foundation for actions that have lead to legal debate (the issue of file sharing comes to mind). The law has often been enlisted to attempt to control the unprecedented dissemination of information through the internet, but in the case of names, the architecture of the internet itself has regulated information availability much more than law makers ever intended.

Flickr is a new site that offers storage and sharing of photographs. I don’t know much about the site. My issue is with the name. “Flicker” sounds to me like a pretty good name for a photography web site. It evinces the click of a camera and the flick of a switch. Why cut the “e” though? At first I thought this was some sort of new web trend – like adding “ster” to the end of an otherwise nice word. If “Flickr” can be “flicker”, it is also dangerously close to “f-lick-r”, which would more likely feature something entirely different.

Flickr, however, is not the result of a new internet naming trend; it’s the result of an old one. The good names are used up. They’ve been taken hostage and held for ransom. There is no site at flicker.com. Under the US trademark system, “Flicker” – when applied to a photography service – was free for the taking. (Flickr would have run into trouble if this were not the case.)

The Anticybersquatting Consumer Protection Act protects against sitting on domain names to exploit trademark owners, but it doesn’t protect trademark makers. Trademarks only exist when applied to goods or services (or when famous), so as long as the owner of flicker.com is not actually using the name, Flickr has no claim against it. Buying the name would only support the market (something like negotiating with terrorists to free the hostage names). We are left having to invent crazy new names and use creative spelling. This has a negative effect on culture itself because it locks up cultural resources. This is a consumer culture, and corporate names are indeed a cultural resource.

As the internet changes the way information is used and consumed, we not only need to consider how law should suppress information sharing, but also how law should prevent technology from suppressing information.

I really was looking for a name for a new website I’m working on. I eventually settled on a grammatically incorrect word combination. The name I really wanted is registered to some lady in Arizona. I could have offered to buy it from her, but I refuse to negotiate with terrorists.

Who Owns Intellectual "Property"?

Something is wrong with the mainstream debate over copyright and the Internet. Much of this debate is summarized by the phrases "my property" and "stop the pirates," but the shallowness of such label-shouting is merely a symptom of the deeper problem. And that problem is that the "war over copyright" is not, in fact, a war. It is a small (but increasingly articulate) uprising against a rigidly powerful regime. It is no coincidence that this uprising—lead by Lawrence Lessig, the Electronic Frontier Foundation, and writers like those at Copyfight—comes at a time when technology makes the production and duplication of content so easy. Now that we, the little people with no capital, can duplicate a rock album or photoshop an image in minutes, we have radically different interests than those presupposed by the Copyright Act before the information age.

When copyright used to be merely the business of publishers, recording companies, and film-makers, the Copyright Act was mostly irrelevant to the rest of us. This is quite obviously changing. The range of activity made possible to anyone with a computer and an ISP is sharply restricted by copyright laws. Be careful what you download—pretty much every file that exists is copyrighted automatically upon creation. Be careful how much text you quote on a blog—the contours of fair use are superbly vague. Make sure to carefully read Campbell v. Acuff-Rose Music, 510 U.S. 569, before you parody a song or someone’s writing.

The Internet’s remarkable lubrication of information-flow means that ordinary people can effortlessly tread into domains stamped by copyright. But the business of duplicating valuable content is hyper-concentrated in a few major publishers and companies represented by the Motion Picture Association of America and the Recording Industry Association of America. These “Copylords,” as I call them, cannot possibly stop every person from treading into copyrighted domains, so they have launched a powerful rhetorical campaign to erect moral barbed wire where legal remedies are impractical. The principal feature of this rhetorical campaign, the phrase “intellectual property,” has been its crowning victory so far. The act of duplicating data has been conceptualized as “theft” and the state-enforced monopoly that is a “copyright” has been conceptualized as something that can be owned—“property.” All the social opprobrium attached to stealing a CD or a pair of shoes, or squatting on someone’s land, has been mapped onto the act of duplicating cultural works—an act that is quite radically different from stealing property, from a common sense point of view, and economically.

I don’t intend to argue that artists have no legitimate entitlement to their creations, or that copyright protection shouldn’t exist. But this rhetorical campaign by the Copylords has obscured the essential purpose of copyright: to benefit the public. Artists and the companies that profit from them are not the constitutional beneficiaries of copyright—the public is. The Constitution not only empowers Congress to grant exclusive rights to an author’s writings, it expressly states the reason: “to promote . . . the useful arts.” Copyright is not a legalized Academy Awards ceremony to flatter the talented. It is a state-regulated incentive structure to help us culturally flourish.

When we ordinary people confront the copyright barbed wire in our every day lives, we should judge those barriers solely from the standpoint of incentives, with a view to nurturing a robust culture and maximizing our access to that culture. The Copylords will keep telling us all that it’s their "property," but once we see that "property" in this context is merely a metaphor, we might notice that Copyright wreaks significant restrictions on our property—our computers, CDs, websites—and our liberty—of speech, expression, and commerce. The questions about whether these restrictions on liberty are worth the incentives they preserve cannot be answered by talk of "property" and "theft."

It’s often clear who has the right under current law; most "file-sharing" is copyright infringement, plain and simple. But if it is true, as a recent study concludes, that file-sharing has zero impact on music sales, then perhaps we ought to be writing Congress to mention that our liberty might be needlessly restrained, and that a lot of benefit could be unleashed. As a post-script, we might point to creative and political works like "The Meatrix," an animation work that borrows characters from (and probably infringes) the film, The Matrix to advance vegetarian politics. Or we might point out various creative works at Ebaumsworld.com that undoubtedly confer a cultural benefit but depend on copyrighted content. Such works—and they abound on the Net—tread dangerously in the murky ambiguity of fair use (a four factor balancing test), and often step clearly over the infringement line, notwithstanding their unique value and harmlessness. To be fair, file-sharing and other infringements may, in fact, eventually disrupt the incentive structures that give us valuable content. But the intelligent question is not “whose property?” but rather “Is the legal entitlement necessary to preserve a creative incentive that we want?”

There is something wrong with the copyright debates because Copylords write nearly all the speech. There’s something wrong with the fight because one side has most of the money, power, and influence over Congress. Most of us ordinary people can’t afford to defend a lawsuit against them, and don’t have the money or the organization to build an effective lobby. But we can fight them on the rhetorical front. Even if they continue to "own" regions of our personal activity and expression, they needn’t own our thinking about copyright. There’s nothing to stop us from unpacking all the labels and asking, "What’s best for all of us?"

April 13, 2004

Fred: The Tale of Two Countries

Mediocre Fred does not aspire to be a lawyer but will become a politician if you promise to vote for him. He writes a Mediocre Blog - Ed.

Earlier this month, I saw a couple pieces of news on the subject of online music file-sharing. First, a judge rules that file-sharing is, for all practical purposes, legal in Canada. Second, the U.S. House passed a bill that would subject file-sharers to jail. Why the different attitudes? Legally speaking, Canadian copyright law has a large personal-use exemption, and that's the basis for the ruling. But I'm more interested in the cultural attitudes. Why is the Canadian government, which by most accounts applauds the judge's ruling, so friendly to file-sharing, and America so unfriendly?

Some will probably point to things like the looser attitude toward drugs and gay marriage in Canada, and conclude that our neighbor to the north is just more progressive and with it than we are. And there's something to that. But I think the more instructive example in this case is to look at prescription drugs.

The Canadian government imposes strict price controls on prescription medications, leading to prices that are significantly lower than in good old free-market America. That's why people like Illinois Governor Rod Blagojevich are pushing for the re-importation of drugs from Canada; the savings are very significant. Canada argues that a lot of people need these prescriptions to live, and therefore need to be able to afford them.

Those in favor of America's current policy argue that drug companies need to be able to make money in order to afford research and development of new drugs. If price caps are imposed, drug companies will go bankrupt and then no one will have the pills they need to live. America also has a longer period of patent protection on new drugs, on the theory that companies need to be able to recoup their investment in the drug's development.

The difference in attitude comes down to differing perceptions of the drug companies: Canada believes that drug companies, in an open market, are profiting unfairly from customers who are literally dependent on the drugs for survival. After all, if the price of your favorite soda goes up, you can always switch brands or stop drinking soda. If the price of your patent-protected blood-pressure medication goes up, you don't have these options. America believes that drug companies are doing what they need to do to stay in business. In short, Canada looks out for its citizens first, while America looks out for the companies first.

Both sides have a point. If every market were as tightly price-controlled as Canada's, drug companies probably would have to cut back significantly on R&D, which is bad for everyone long-term, since it means that fewer new drugs come to market. On the other hand, without price caps (and without national health insurance to pick up the tab), there are plenty of people who can't afford the drugs they need, and that's not good, either.

But this isn't a discussion about prescription drugs. We're talking about music. The same attitudes, though, apply. Canada feels that recording companies are overcharging for music, and America feels that companies are doing what they need to stay in business.

The difference in this debate is that you don't need CDs to live. But there are still similarities: Each album is sold by one, and only one, recording company. If you want that album, you have to buy that company's copy, because they have a monopoly and there is no market competition in pricing.

And as with drugs, there's a limited substitution ability: If a particular company is charging too much for Melissa Etheridge's latest album, buying the Chaka Khan album from the discount bin isn't a valid substitute. There's no "store brand" of Melissa Etheridge music that you can buy instead. So if the price of the album is inflated, you either grumble and pay or don't buy it at all.

Or at least those were your options before file-sharing came along. Now you can get all the songs of the album for free! Download them onto your computer, arrange them in the proper order, and it's just as good as having a CD. Any rational person, given this option, is likely to head straight for Napster or Kazaa.

But there's a problem, of course. If too many people stop buying CDs altogether, recording companies go bankrupt, and artists have no incentive to create new music. While the latter proposition might not be a bad thing in the case of, say, Britney Spears, it would be a shame if someone like Etheridge or Eric Clapton had to hang up his or her guitar because there's no money in it any more.

It's a classic economic dilemma: One producer has an established production and sales model and a stable price plan. A competitor comes along, offering the same good only better, more cheaply, or both. The original producer has two options: Modify the old business plan to level the playing field, or crush the competitor.

The recording industry has clearly chosen Plan B, and it strikes me as a mistake. Music consumers are already inclined to see recording companies as evil and greedy. And with that CD price-fixing lawsuit, who can blame them? Leaning on Congress and the courts to let them attack their own consumers only adds fuel to the fire. The recording industry needs to collaborate with customers to find a new way to do business, rather than trying to crush them.

On the other hand, if file sharing really does cause a huge drop in CD sales, then we have a problem. However, some studies dispute the negative effect, as Nick at De Novo and Ryan at Dead Parrots Society have noted. If people are abandoning CDs in large numbers and downloading music for free, artists are going to suffer.

Apple's iTunes service suggests a way out of this; they let you download songs individually for a small fee. This is good in two ways; one, it gets around the CD price-gouging issue, and two, most people only want two or three songs from any particular CD anyway, so this gives them the opportunity to just get what they want.

The recording industry should look at incorporating this model into their business plan. Better still would be if the artists could do it themselves. Music fans may hate the recording industry, but they don't hate the aritsts, and would like to see them compensated for their work. That's the thing most file-sharers don't think about; they see downloading as taking money out of the pocket of some slick-haired recording-industry exec, not from the artist. The Internet allows people to make more direct connections, and if artists were able to reach out directly to the fans, it would only strengthen the connection.

What do you think? Who's right on the file-sharing issue, Canada or America? Recording companies or downloaders? Is there a way to create a new model that takes care of everyone? Post your suggestions in the comments section, and let's discuss it.

Adin: Policing the World... Wide Web

Justin R. Adin is a 1L at the University of Nebraska. Hailing from New York, he plans to return there to practice law and retire by 35 so as to take up blogging as a full-time profession. - Ed.

"We live in a global world." This is how my first undergrad sociology course started. I swear, I miss those days. Eventually, the professor realized what she said, and corrected it. "We live in a global community." This statement becomes more true everyday. Our societies are merging, with the help of global telecommunications, and more specifically, the internet.

The internet connects many people from countries all over the world, spreading thoughts and ideas. This globalization leads to a problem, however -- how do you regulate such a system?

Generally, each country can regulate the system inside its borders, but the internet spans past national borders. For example, the U.S. government has recently been cracking down on internet gambling. The problem is, the majority of these companies are located outside of the United States. This has led the government to pressure the search engines, causing giants such as Yahoo and Google to pull the advertisements from their sites.

Through the internet, people can get just about anything they want. If you buy from a U.S. retailer, you are technically responsible for the sales tax on the item (to be paid with your income taxes). Yet there is little tracking and enforcement of this. If you buy from outside the U.S., you may be able to get items that are not legal in America.

Of course, when you purchase these items, you generally agree to a set of terms and conditions that include language to the effect of "you affirm that the items you are purchasing are not illegal to own or possess at your place of residence." This is a way to "absolve" the company of liability. This is marginally less effective then the "you must be 18 to enter" links that pornographic websites offer. At least those links you have to look at.

This leads to the problem -- how do you regulate the internet beyond your borders? How much of the regulation should be nation to nation? This is an instance where the U.S. system would work well. In the U.S., the Federal government sets the minimum standard of protection that a person receives. The State governments have to follow these minimum protections, but may increase them as the State sees fit. (Yes, this is a simplified overview, but it suffices for this comparison). A global council, such as the United Nations, can set the minimum standard of regulations. Each nation could then impose stricter regulations as they see fit. This ensures that there is some degree of uniform regulation in the world, and then allows each country to restrict things further.

Then again, this system is flawed as well. One reason the U.S. system works so well is that all the states participate. As a practical matter, no matter how the global council is formed, there will be unrepresented countries, and countries that refuse to participate/accept the precepts of the council. So even with an attempt at global regulation, there will be failures.

The larger question is what effect would internet regulation have on our culture? The internet has been a means for free dissemination of information. The "information superhighway" has changed our culture for the better. Never before has so much information, from so many different sources, been available so quickly.

To regulate this flow of information, to restrict access to the cornucopia of knowledge and ideas contained within the internet, can irreparably harm our society. It is true protections may be needed -- for instance, there are things that children should not have access to, and should not be exposed to. But to regulate what information adults can have access to, the government stops ensuring our freedoms and starts parenting us.

Though some regulation may be necessary, and indeed beneficial, attempts to stymie the flow of information negatively impact the global society which the internet has created. I started writing this asking in what ways are regulations possible and needed, and ended up with the realization that this is not the important issue. It is more important to first realize what the internet means to our society, and what we stand to lose through regulation.

Palmer: File Sharing Is File Stealing

Martha Stewart. Bernie Ebbers. Dennis Kozlowski. The entire Enron crew. We take a serious view of these thefts, often coming to the conclusion that the people at the center of the scandals are greedy, morally destitute business-people who deserve what they get. We sit on our high horse, righteously decry the greed that has overtaken America, and fill our iPods with thousands of the latest tracks without paying a cent.

What is it about stealing the hard work of our favorite music artists that makes it so acceptable?

We obey stop signs even when there is no chance of being caught. We don’t steal CDs or electronics from the store because we know it’s illegal. We think it’s wrong for Martha Stewart to trade off of insider information. But overwhelmingly, young people sign on the Internet every day and "trade" millions of dollars worth of songs on peer-to-peer networks.

For the most part, we follow laws, even when it is clearly more convenient and desirable to break them, as in the case of the stop sign and shoplifting above. If I won't get caught or hurt, why stop at an intersection? If no one will catch me, why not take the CD? Laws don't exist for convenience's sake, and they often proscribe a desirable course of action, yet for the most part, the great majority of citizens follow the laws to the best of their ability. Of course, there are plenty of people who run stop signs and shoplift, but we cast them off as deviants and undesirables.

Why then, is Internet file-sharing so popular? In the virtual world, activities we clearly shun in everyday life are applauded as an entire social movement. As we download, we think about how “we’re poor students, anyway,” and how “those guys are rich enough already.” We'd like to think downloading music is wealth distribution worthy of Robin Hood, but in reality it’s just garden variety theft.

The truth is that file “sharing” is indefensible, and just below the surface we all know it. Though we'd prefer to pretend we're the same righteous Holy Rollers who prosecuted Martha, we’re really just hypocrites who lack enough moral direction to know better. Fact is, we’re not much different from Martha – she traded stocks, we trade music, but both Martha and music-downloaders are out to save money.

Internet law (and more importantly, enforcement of said laws) is in its infancy, but somehow we've interpreted that as a carte blanche ticket to break laws we know exist, whether written in stone or into our minds by social institutions. In civilized society, social mores play as big a part in molding behavior as do written laws. It almost seems as if the generation of file-traders, of which I am most certainly a part, hasn't socialized this impulse that prevents us from stealing. We split hairs to differentiate stealing from the store and stealing songs on the Internet, but in the words of my favorite lawyer, Cousin Vinny, none of the arguments "hold water."

Despite our best delusions, the Internet hasn't changed anything. Making it easier to break the law doesn’t make file trading justifiable theft. Social change that involves theft is illegal, whether the crime is committed online or on the streets. Music is like any other product, and we need to start thinking of it as such, because the fight over file-sharing has larger ramifications. Intellectual and creative property is the basis of the information age economy, and the battle fought over trading may have great consequences on future application of copyright and IP law. So far the courts have done a decent job of upholding these laws – but until we find an efficient way of enforcing the laws, file-sharing will continue en masse.

We steal because it’s easy. We steal because we hate paying exorbitant prices for music. We steal under the guise of social change. We steal by pretending we're trading. We steal because we know the day will soon come when we can’t anymore. Call it what you want - it's all theft nonetheless, and we're all guilty.

Bassett: Lynch, Lessig, the Irish and '60s Rebels

Graham Bassett is an Australian LLB (Bachelor of Laws) who is "converging law, information technology and education to foster an autonomous cyberspace" - Ed.

What is an autonomous cyberspace?

First, it is necessary to examine a legal definition of cyberspace. It has been described thus:

The Internet is essentially a decentralised, self-maintained telecommunications network. It is made up of inter-linking small networks from all parts of the world. It is ubiquitous, borderless, global and ambient in its nature. Hence the term "cyberspace".

This is a word that recognises that the interrelationships created by the Internet exist outside conventional geographic boundaries and comprise a single interconnected body of data, potentially amounting to a single body of knowledge. The Internet is accessible in virtually all places on Earth where access can be obtained either by wire connection or by wireless (including satellite) links.

Effectively, the only constraint on access to the Internet is possession of the means of securing connection to a telecommunications system and possession of the basic hardware.

Second, it is necessary to examine the nature of cyberspace. The Net was a libertarian space in its early phase. The Web was originally designed to allow minimal intervention by third parties between two end users. The architecture was such that freely available protocols enabled unfettered connections. Its standard protocols for cross-platform communication (TCP/IP), provision of collegial rather than proprietorial access to open source software and end-to-end architecture greatly empowered end-users.

Having a decentralized, non-authoritarian structure with bottom-up governance, it was owned by no single entity. Thus, John Perry Barlow was able to claim: "Your legal concepts of property, expressions, identity, government and context do not apply to us. They are all based on matter, and there is no matter here." (See Declaration of Independence in Cyberspace.)

This architecture facilitated disintermediation. It places power and control in the hands of end users and disintermediates traditional forms of regulation. (For example see: Lessig L, & Lemley M, "Petition to the FCC In the Matter of the Transfer of Control of Licenses from MediaOne Group, Inc to AT&T Corp" (1999)) The role of regulatory intermediaries, such as governments and institutions is depleted thereby. The customs officer in the airport hunting for infringing CDs is redundant in a world where music can be distributed by the click of a button in a bedroom.

Third, we must look examine the concept of property in cyberspace. To date,
lawyers and their market have operated in "the world of atoms" where activities and laws relating to them conform to linear and sequential thinking. This copyright law saw the pirate as a person sitting at an airport with multiple CD's hoping to avoid customs. The property involved was manifested in a material atom form even if the ownership was merely based on a license or assignment of an IP right.

"To a significant extent, our legal scholarship has remained fixed within this model of converting sequentially-stored dilute information into useful epitomes conforming to the intellectual prepossessions of the era," sums up one commentator on the pre-digital world of law.

But now property is made up of bits. To use the phrase of Nicholas Negroponte, most contemporary information technology innovation and inventions exist in the 'world of bits' -- the inventions are nothing more than strings of '1's' and '0's' easily altered, transferred and copied. Data is non-linear, non-sequential and hypermediated. (Negroponte, Being Digital). The music pirate sits at home cutting gup bits and sending them to a world-wide market almost instantaneously.

As e-commerce emerged the libertarian structure of the Net was questioned. Commerce demanded trust between end-users. Liberty did not loom so large. The challenge to conventional law and commerce in cyberspace was pithily stated by Net founder John Perry Barlow:

The enigma is this: if our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving our possession, how can we protect it? How are we going to get paid for the work we do with our minds? And, if we can't get paid, what will assure the continued creation and distribution of such work?

Fourth, there has been a growing awareness that more regulation, not deregulation, is necessary. Cyberspace is subject to increasing regulation but in a climate where governments are reluctant to do so. Cyberspace has developed in period of decreasing government intervention and regulation. This has been an aim of those promoting of the increasing privatisation of commerce and society.

But as Lessig points out, when government proves reluctant to regulate, it is not as though nothing else takes its place. He sees this anti-governmentalism as an immature hangover of the 60's rebels:

We have become like the Irish. We too indulge this self-indulgent "anti-governmentalism." We have lost the ideal that there is a role for government. Especially we who spend too much of our time using electrons to interact; especially we who still stand amazed at the potential of this new world; especially we, who cannot remember a time when there was not an underbelly to every story about a hero. We are the children of David Lynch, who cannot help but believe that just beneath the surface of every beautiful and pristine world there is decay. We listen to the promises of our governors no differently than the Soviets listened to the promises of their governors. We, like the Soviets, have heard it all before. "Hope" for us is not a place. "Hope" is a television commercial.

This is pathology. When government steps aside, it is not as though nothing takes its place. When governments disappear, it is not as if paradise prevails. It is not as if private interests have no interests, as if private interests do not have ends that they will pursue. To push the anti-government button is not to teleport us to Eden. When the interests of governments are gone, other interests take their place. Do we know what those interests are? And are we so certain they are better?

Lessig argues that in this time of small government that the problem is that
market forces are carrying out regulation. For example, technological
protection measures can be created by private companies that create software
that overpower fair use rights granted under copyright law. Private regulators are not necessarily concerned with maintaining public values.

To enhance e-commerce is that commercial relationships need to be based on trust. Thus the spam marketers of penis envy, mortgage reduction and breast enlargement abuse our trust by abusing our right to consent to receiving their communications. They deny us autonomy in expressing this consent. An earlier comment on emerging problems for internet commerce highlighted the need for individual autonomy in order to create trust:

...we would need to fulfil a background condition, so that the choice whether or not to buy will count as an autonomous choice. But this is the background condition that modern commerce cannot often fulfill. Even if purveyors of products-plus-terms tell the truth about them, even if all the fine print is on the website for all to peruse and download if they wish, it is not efficient or even possible for buyers to take the time to understand all this information.

Finally, autonomous cyberspace will be based on transparent regulation. If we know what is being regulated and how it is being regulated as a citizen we can evaluate this regaulation. One of the criticism of the Australian system of content filtering is that the public has no way of ascertaining what is being filtered - see case comment on EFA v ABA - thus the system lacks transparency, and trust deteriorates.

So is autonomous cyberspace this? I would be happy to hear back from people on this discussion group how they would define it but here is my attempt:

It is a cyberspace regulated in a way that enhances the power of end-users to the degree that is fair and reasonable for them to maintain trusting relationships. Regulation by third parties between end-users should be minimal and transparent and the necessity for it outweighs alternative forms of regulation.

Of course, this brings us to the question of what are the modalities of regulation -- but this is a question for another day.

Internet, Law & Culture, Day Two

Welcome to the Day Two of Internet, Law & Culture, De Novo's second installment in our continuing series of symposia. Yesterday's posts are all linked here. As ever, we encourage you to respond in comments, by e-mail if your response merits a new post, or on your own weblog. Please keep De Novo in mind as a place to post fresh ideas or re-publish work that should have a new audience. Today's contributions are:

April 12, 2004

Today/April 13

Today in History (1598) - King Henry IV of France issues the Edict of Nantes, allowing freedom of religion to French Protestants. Two hundred thirty one years later, the British Parliament reciprocated, granting freedom of religion to Roman Catholics. And happy 261st birthday to Thomas Jefferson, author of Virginia's Statute for Religious Freedom.

Internet, Law, & Culture, Day One

Welcome to the second of De Novo's continuing series of symposia, 'Internet, Law, & Culture.' We've had an excellent response to our call for submissions, and we're pleased to offer lots of good writing over the next three days. Once again, we encourage you to respond in comments, or by e-mail if your response merits a new post. We also welcome entirely new contributions throughout the symposium, whether you have new writing you'd like to share, or whether something you've already published deserves a second airing. Today, we offer the following short essays:

Bratcher: The Matrix Experiment

Stewart Bratcher is a second year law student at Georgia State University. He blogs at Shouting Fire. - Ed.

As we now know, changing the name of the governmental data mining project from "Total Information Awareness" to "Terrorist Information Awareness was not enough to prevent the project from being halted in Congress. Similarly, applying a tortured acronym like "MATRIX" to the "Multistate Anti-Terrorism Information exchange" was not enough to prevent public outcry once the program was publicized. The reactions to the MATRIX database are interesting, because they suggest that groups with widely divergent interests still share some common interest, independent of those provided by positive law.

The MATRIX is a database operated by Seisint Inc., a privately owned, Florida based corporation. It is made up of a combination of state governmental records (including personal information and fingerprints), and records provided by private corporations (such as credit and loan histories). This information is combined in the database, and is then made available for investigative purposes to state and local law enforcement officials from the participating states.

While individual states choose for themselves whether to participate and what information it will provide, the database is funded almost entirely by the federal government. Although supporters have claimed that MATRIX does not allow "data mining", recent documents uncovered by the ACLU pursuant to requests under the Freedom of Information Act seem to suggest that, even if the system is not "intended" for such a purpose, MATRIX provides law enforcement officials with the technological capability to data mine, should they so desire.

Criticism of the MATRIX has been widespread, and has not been ideologically driven. Groups ranging in viewpoint from the ACLU to the ultra-conservative Southeastern Legal Foundation have objected to the program, citing privacy concerns and the dangers inherent in turning over data to a private corporation. Nor has the criticism derived solely from interest groups.

In Georgia, for example, journalists and legal experts have criticized the program in editorials. And while Georgia Bureau of Investigator director Vernon Keenan, Seisint CEO Paul Cameron, and some academics sought to counter these objections, the public as a whole seems to have been persuaded by the critics. This is evidenced by the near unanimous disapproval of state involvement in the MATRIX, among those who felt strongly enough about the issue to submit letters to the editor of the Atlanta Journal and Constitution.

Apparently, the public objections had some effect. Following a memorandum by Georgia Attorney General Thurbert Baker declaring that the use of Department of Motor Vehicles information in the database would violate state law, Governor Sonny Perdue announced that Georgia would stop sending information the MATRIX database, though criminal record information that had already been sent would be allowed to remain. To support his decision to withdraw, Purdue cited undecided funding issues, the apparent necessity for a change in the law based on Baker's opinion, and "the privacy concerns that the Governor held all along".

While Perdue might have held privacy concerns all along, he never mentioned them prior to this decision, even though he did mention his fiscal and legal concerns previously. Thus, even if the public criticism of the program did not create the Governor's privacy concerns, it appears that at the very least, it caused the Governor to openly discuss his pre-existing concerns in refusing to join.

Georgia is not alone in its experience with the MATRIX. Of the sixteen states who have participated in the database, eleven have withdrawn following public outcry, with the primary concern being invasion of privacy.

This is what makes the MATRIX debate unique. In recent years, the majority of discussions about privacy have centered on that which is constitutionally protected. While the Constitution has sometimes been raised in the MATRIX debate, it seems this was more for effect than pointing out the risk of an actual violation. There is very little validity to constitutional objections about the Matrix. Most of the records were either already in the hands of the state, or in the hands of a private company (thus diminishing the claim of a "reasonable expectation of privacy"). Similarly, minimal protection is provided by federal statutory law or the laws of the several states in this regard.

Because there was very little constitutional or statutory protection preventing program, the typical reliance on positive "legal" rights would be misplaced here. But, despite the lack of any clear, legally grounded "right" in this situation, citizens and groups crossed ideological lines in an effort to protect an undefined "right to privacy".

This could demonstrate something encouraging about modern America: despite our national fetish with rights bestowed upon us by our Constitution and laws, there still exists certain spheres of life where people from varied ideological backgrounds can agree that we should be free from intrusion, even absent prior governmental recognition . That is, a liberty that exists not because of its legal recognition, but simply because it's just simply right.

Clerk: Child Self-Pornography

The Curmudgeonly Clerk is gainfully employed as a law clerk for a federal District Judge in Texas and curmudgeons at his one-year-old blog - Ed.

Child pornography-related offenses comprise one area of the law that is bound to grow as the Internet becomes ever more omnipresent. Professors Froomkin and Volokh have both recently commented on a case that, perhaps, highlights the futility of child pornography laws where older teens are concerned. According to the Pittsburgh Post-Gazette:

State police have charged a 15-year-old Latrobe girl with child pornography for taking photos of herself and posting them on the Internet.

Police said the girl, whose identity they withheld, photographed
herself in various states of undress and performing a variety of sexual acts. She then sent the photos to people she met in chat rooms.
* * *
She has been charged with sexual abuse of children, possession of child pornography and dissemination of child pornography.

The Post-Gazette article is rather cursory. Accordingly, one can only speculate as to what would motivate the authorities to charge a person normally conceived of as "the victim" of the charged offenses. It would seem that the charges against the 15-year-old are likely just being employed as a means of prosecuting her online (and presumably elder) paramours. The article also reports that, "[p]olice said they are trying to identify all the people who receive photos from the girl." Pretextual charges against the victim, for example, would allow law enforcement agents to seize her computer in order to make those identifications, which is precisely what has been done.

It is not clear to me that the prosecution of such recipients would be just in the absence of proof that they solicited what they knew to be child pornography, but as Froomkin notes possession of child pornography "is an unusually strict liability crime." See, e.g., State v. Peterson, 535 N.W.2d 689, 690-92 (Minn. App. 1995) (discussing parameters of strict liability with regard to child pornography-related offenses and upholding strict liability offense); but cf. State v. Maxwell, 767 N.E.2d 242, 247 (Ohio 2002) (intimating that a jury might reasonably find deletion of child pornography from one's computer to be a circumstance that would support a claim of download by mistake).

Setting aside this concern, both Froomkin and Volokh evince doubts about the propriety of prosecuting the 15-year-old, and Volokh suggests an appropriate counter-example. He observes that prosecuting the girl in question is untoward for precisely that same reason that "prosecu! ting sexually promiscuous 15-year-olds who have sex with adults for 'aiding and abetting statutory rape' doesn't seem quite."

Were I this 15-year-old's counsel, I would argue much the same thing, but with substantially greater vigor. For, if anything, Professor Volokh understates his case. It is not just that this girl should not be prosecuted, her prosecution is actually unlawful in my opinion. See In re Meagan R., 49 Cal. Rptr. 2d 325, 330 (Cal. Ct. App. 1996) (holding that 14-year-old, "as the victim of the statutory rape, cannot be prosecuted on that charge, regardless whether her culpability be predicated upon being a coconspirator, an aider and abettor or an accomplice given her legislatively protected status").

The whole point of criminalizing sex with minors, after all, rests on the notion of protecting them from themselves. See People v. Hastings, 938 P.2d 78, 81 (Colo. Ct. App. 1998) (noting that "the purpose underlying [the] crime of statutory rape is to protect children from the consequences of acts they cannot comprehend"). Much the same can be said of offenses concerning the sexual abuse of minors and child pornography.

Moreover, the statutory rape parallel suggests an additional policy-related rationale for rejecting the sort of prosecution at issue. As the California court of appeals noted in In re Meagan R., allowing prosecution of "the victim" would threaten the very viability of statutory rape as an offense altogether by discouraging such persons from coming forward. See 49 Cal. Rptr. 2d at at 330 n.8 ("Confronted by the possibility of criminal prosecution predicated upon vicarious liability, it is doubtful a minor victim of a violation of the statute would be likely to report the offense to authorities."). This observation likewise applies with equal force to the laws concerning sexual abuse of minors and child pornography.

Indeed, what renders the Pennsylvania prosecution even more curious is that the foregoing legal principles are of longstanding pedigree. See The Queen v. Tyrrell, 1 Q.B. 710, 712-13 (1893) (reciting the foregoing rationales for disallowing prosecution of female for aiding and abetting male to have "unlawful carnal knowledge" of her); Gebardi v. United States, 287 U.S. 112, 116-23 (1932) (rejecting Mann Act prosecution of woman transported across state lines for the purpose of prostitution advanced on theory that she was a co-conspirator in her interstate transport solely on the basis of her consent thereto). The principles at work in Tyrrell and Gebardi have hardly fallen into desuetude. See State v. Lucas, 795 N.E.2d 642, 644-48 (Ohio 2003) (citing both cases, as well as In re Meagan R., to similar legal effect in different factual context).

Trinh: Beer Via E-mail, And Other IP Challenges

Mike Trinh has a computer science and software engineering background, works as a policy analyst on emerging technology issues, and is a 2L at Georgetown. He blogs at Lawgorithm in his spare time. -Ed.

One of my friends had this great idea for a “broadband beer distribution” network. The theory was that you could use the Information Superhighway to deliver beer to you at your computer via the Internet, saving time and reducing the threat of drunk driving. At the height of the Internet boom, an idea, ridiculous as it was, could have managed some venture capital. At this early point of implementation, it consisted of other people making the run to the fridge for a cold brew, as it was simply a joke by yet another fun-loving guy trying to “harness the power of the internet” to solve the beer run dilemma.

However, the underlying concept of a broadband beer distribution network captures one of the fundamental network design concepts of the Internet Protocol (“IP”): data abstraction. While beer pushes the envelope of the definition, data abstraction, generally, is a design concept that means that networks are designed to handle all kinds of information, treating them all as functionally equivalent.

Using data abstraction, a computer can send any kind of data, knowing that the underlying data network will be able to handle it. Steve Bellovin captures this advanced concept quite succinctly: “anything on [Internet Protocol packets], [Internet Protocol packets] on top of anything.” Quite simply, any data can be abstracted into an IP packet, and an IP packet can be layered onto any networking medium (though beer is not quite “data” as we currently understand it). The current trend towards digital “convergence” (voice over IP, web over cellular network, etc) is simply the logical conclusion of a migration from single-purpose networks (cable TV, telephone networks) to general purpose networks built on concepts of data abstraction. Technical policy must adapt and change into robust policy frameworks that embrace the flexibility and growth capabilities that Internet Protocol networks achieve through data abstraction.

Data abstraction (and layering) is one of the keys to the growth of the Internet, because IP can work with unpredictable future data formats. The World Wide Web, P2P music sharing systems, and massively multiplayer immersive 3D gaming environments are all simply protocols layered on top of the basic Internet Protocol, which through data abstraction, treats all these radically different protocols as simply bits of data. Each of these prototype communications technologies did not have to overcome the massive entrance cost of building a new network—they simply could use the existing Internet Protocol.

Similarly, the Internet Protocol itself can be layered on top of any network (e.g., phone, cable modem, mobile phone, satellite). Before the Internet, the architecture of most data networks was oriented to a single use. Cable television networks carried just cable television, and were the only networks that carried cable television. Traditional phone networks carried only traditional phone traffic. But abstraction and IP networks changed that by introducing general purpose data networks. The result of the data abstraction and protocol layering is that new data networks can carry any type of traffic and were far more flexible than traditional specialized networks. Cable TV networks now carry instant messages and e-mail. Cellular networks now support file transfers. Singe-purpose networks are quickly the going the way of an ISDN line or a bag phone: a cute anachronism of limited relevance in a modern communications environment.

Data abstraction is both the technical beauty of the Internet and a fundamental ugliness in communications regulation. Current regulatory schemes and legislation are still rooted in an assumption of single-purpose data networks, and data abstraction challenges the assumptions inherent in these policies. Data abstraction blurs policy distinctions between types of networks and types of traffic. If existing policy is not to become derelict, regulatory assumptions about single-purpose networks must reflect the dynamic capabilities of modern networks.

Regulatory approaches must adopt to recognize that a particular type of data may travel over any number of data networks, instead of assuming that a particular type of data must travel over a specific network. For example, the Cable Communications Privacy Act (“CCPA”) regulates the dissemination of viewing habits and other TV records by regulating the collection and dissemination of data by cable TV operators only. The CCPA requires that subscribers to cable networks give their written consent before personally identifiable information is collected—but this requirement only extends to cable TV network operators. This model for legislation assumes that only cable TV operators have access to TV subscriber data, which was a fair assumption in 1984, the year the CCPA was passed. This underlying assumption may not be true. As people begin to watch shows over non-cable networks, such as over satellite networks or the Internet, cable TV viewing habits, data intended for protection under the CCPA, may now leave the confines of regulated actors under the CCPA—circumstances that the CCPA does not anticipate.

As networks evolve from single-purpose designs, telecommunications policy must evolve to deal with these general purpose networks carrying commingled data. Policy choices that made sense for single-use networks must be rethought for a general purpose network, where regulation will reach all data traveling over that network. The pending emergence of Voice over IP (VoIP) technology is a prime example of the problems that converging networking places on traditional regulations. Briefly, VoIP allows a data network, such as a cable TV network, to carry telephone services traditionally traveling only on the traditional phone network. VoIP is an anomaly that does not fit well into the existing regulatory schemes: it is not a network solely used for telephone service like a traditional phone network, but a service that is ‘layered’ to run over IP and any number of underlying networks that carry other data. Should Voice over IP be subject to the policy and regulations of traditional phone networks (e.g., universal service, access taxes)? The FCC is currently studying issues of VoIP, and will also address difficult issues of law enforcement access to VoIP under CALEA. CALEA, generally, requires telecommunications service providers to meet government promulgated standards for government surveillance capabilities. VoIP systems blur the CALEA statutory distinction between telecommunications service and information service. Thus, extending prior policies in from the telephone network to VoIP present extremely difficult questions that challenge existing policy frameworks.

The digital convergence that data abstraction has enabled will bring with it numerous challenges to existing data regulation. Congress and the FCC will have to examine existing frameworks, designed for single-purpose networks, for their continuing relevance in a world of general purpose networks and data abstraction. What results will shape the path of the Internet, and the technologies that replace it.

April 11, 2004

Can Adulterers Judge Divorce Cases?

The chief judge of the state's largest Juvenile Court, whose 4-year-old child was found wandering the streets late at night in November, announced Monday she will resign.

Fulton County Judge Nina Hickson said she thought she could still be a good judge, but the number of people who thought otherwise induced her to resign rather than get kicked out at the end of an investigation. The justification from those who were pushing her to leave was that because her position required "making judgments about other people's parenting skills," a finding by Georgia's Division of Family and Children Services that she had committed neglect, even once, impeded her ability to make those judgments.

I agree that a judge who neglected or abused her child is not the ideal person to pass judgment on others who have done the same, because she might be over-inclined to go easy on other parents. The responsibility of the state is to keep the child in a safe, stable home. While a single incident of neglect does not suffice to ignore the stability consideration -- hence Ms. Hickson's continued custody of her adopted daughter, despite the past endangerment -- all parties who come before Ms. Hickson may be inclined to question whether she is fit to rule over them.

However, this is an incident in Ms. Hickson's private life. Her professional life is exemplary: an Emory Law graduate, trial attorney in Justice Department immigration litigation, an assistant U.S. attorney in Atlanta, a corporate lawyer, an appointment to the juvenile bench with the strong support of several U.S. attornies. "Sworn in as judge in 1999, Hickson quickly established a national reputation for her efforts in behalf of children, picking up numerous awards."

The Judicial Qualifications Commission and others who pushed Ms. Hickson to resign essentially are saying that a personal mistake would have so great an impact on her judging -- whether the impact was due to her own bias or to a perception thereof -- that it outweighs her public accomplishments.

How far could this go? Can an alcoholic judge people who have been driving while intoxicated? a former marijuana smoker rule properly in narcotics cases? How about the titular query: Can Adulterers Judge Divorce Cases?

Even judges of the highest rank are not perfect. Would Chief Justice Rehnquist, who did not read the deed to his Vermont vacation home and thus failed to realize that it had a restrictive covenant, have his judgment questioned in a strict liability case where the defendant had failed to scrutinize a document?

Perhaps child protection is an area of law so important, and so fraught with emotion and accusation, that the judges who work in it must be above suspicion. Certainly a person with a past accusation of neglect would not have been appointed to such a position, and maybe the same standard should apply to retaining her regardless of of her service.

My biggest concern is that as the role of the judiciary becomes more politicized, they themselves will be as subject to witch-hunting as regular politicians are. The theoretical ability of judges to remove their own experiences and prejudices from their minds in order to decide cases -- never entirely believed, but at least maintained as an illusion -- may crumble completely.

Easter Today

The influence of The Passion of the Christ has proven to be widespread and various (recall the criminal confession and heart attack stories). So I can't say I'm entirely surprised to hear about this perversion of Easter:

A church trying to teach about the crucifixion of Jesus performed an Easter show with actors whipping the Easter bunny and breaking eggs, upsetting several parents and young children. [link from Obscure Store]

Now, is this straight-forward iconoclasm, or is it a genuine confusion about the symbology of modern Easter? Not that the symbology makes any sense to begin with (bunnies don't lay eggs, eggs have no connection to chocolate, and all of the above bear only a tenuous relation to Christ's resurrection). From the beginning, Easter was the Christian co-opting of a pagan ritual of fertility (honoring the Saxon goddess, Eastre, to whom the ever-breeding rabbits were sacred). Then the rabbit picked up some magical, colored-egg hiding tendencies from old German lore. Finally, and obviously: enter merciless American commercialism.

For a holiday subject to so many unrelated cultural influences, I'm almost a little worried that Mel Gibson's peculiar Christian savagery will make yet another contribution to this holiday nonsense. But somehow I think people would rather the Easter Bunny not bear that cross.

April 10, 2004

Six Degrees Of Separation

I started to do some thinking about whatever it is I'm going to end up writing for our Internet, Law, and Culture symposium that we'll start posting on Monday, and realized that it would be interesting to know how interconnected the World Wide Web really is -- like, with just clicking on links and not typing anything into a search engine or anything like that, how many clicks separate sites. So how closely connected, say, Instapundit is to ESPN. My guess is 2 clicks. Even if Instapundit doesn't link to ESPN, surely someone he links to does. And then I started to realize, at least within the weblog community, if you're getting more than 50 or 100 hits a day, you're probably within 2 or 3 clicks of something like Instapundit or Bashman, or some other pretty major site with a ton of links in the sidebar or in text. This may just be obvious to everyone, and I'm not sure what my point is really. Just thought it was interesting.

April 09, 2004

OK, This Is Extreme

While I continue to maintain the legitimacy of charging a 15-year-old with dissemination of child pornography that depicts herself, I admit that the police went too far in this case:

A 9-year-old girl accused of stealing a rabbit and $10 from a neighbor's home was arrested, handcuffed and questioned at a police station.
A Pasco County sheriff's deputy found the black-and-white rabbit, named Oreo, hopping around in the girl's living room, according to the arrest report. She was read her rights and taken away in the back of a patrol car.
The girl began to cry during questioning Tuesday. She admitted taking the rabbit belonging to another child, but denied taking two $5 bills and some change, according to reports.

I have a bunny myself, and I would be upset if she was stolen, but handcuffing a child for such a crime is absurd. As the friend who forwarded me the story pointed out, "If you ever have any enemies, you can threaten to turn them into the police for this." I suspect that's pretty much what happened in this case.

Sheriff's spokesman Kevin Doll defended the arrest, and said if the victim of a crime wants an arrest, deputies are required to act if there is enough evidence.
Lori Ventura, the mother of the child who owns the rabbit, said the girl has been involved in other incidents and needs help.

In other words, these kids have been squabbling, the 9-year-old took the rabbit and the mother of the rabbit-owner decided to teach her a lesson by having her arrested. Law enforcement as revenge tool -- nice.

The deputy could have taken a report and referred the charges to the state attorney, said Pasco-Pinellas Public Defender Bob Dillinger.
The girl was released to her mother from a juvenile assessment center about an hour after her arrest, which she said was scary. She also didn't like the deputy.
"He put one handcuff on me really tight," she said Thursday. In the patrol car, "He just stared at me in the mirror."

This part troubles me. Did they question the little girl without a parent or guardian present?

Bunny-napping is indeed a heinous act, but perhaps the police officers of New Port Richey, FL should use better judgment in the future.

Today / April 9

This Date in History (1992): Manuel Noriega is convicted on eight counts of drug trafficking, racketeering, and money laundering. He will be eligible for parole in 2006. Also, happy birthday to songwriter/mathematician Tom Lehrer!

Excerpts From Condoleezza Rice's Testimony

>>"At the beginning of the administration, President Bush revived... the vice president."
>>"I generally spoke by telephone... with... the Al Qaida network."
>>"Presidential Decision Directive 62, signed in 1998... increased funding for... the relationship between... Dick Clarke... [and his] secretaries."
>>"U.S. airlines and airport security personnel... tried to decapitate... American people."
>>"Saddam Hussein will never again use... a... car."
>>"Don Rumsfeld... killed Americans."
>>"Director Freeh... had an allergy to... a wonderful woman."
>>"I do not believe that... shaking the trees... [caused] mass destruction."
>>"I would talk everyday, several times a day, with... [S]pike."
>>"Tom Ridge... [is] the weight not just of the national security advisor, but the weight of the chief of staff."
>>"We're still trying to unravel... Bin Laden['s]... inside[s]."

April 08, 2004

The Elephant

New reality show on Fox: "The Elephant" -- 12 average-looking men and women are subjected to three months of intense body transformation. They undergo radical plastic surgery, have all of their bones broken and fused back together again, have their teeth straightened, bleached, and veneered, have their hair removed and replaced, have their skin peeled off layer by layer, purified in a centrifuge, and replaced, and, most importantly, have their genetic code modified. When the procedures are completed, the transformations will be revealed. The 12 average-looking men and women will have been transformed into... elephants. Real, live, big gray elephants with long trunks and big feet. The elephants will then compete for cash and prizes in a truck-pulling competition that will be televised live -- by cameramen who will stand on a thin wire connecting two New York skyscrapers -- with no net, no clamps, and no margin for error. On a windy, rainy day. Blindfolded. With live worms crawling all over their bodies.

These worms: will compete in a singing competition, judged by music legends Olivia Newton-John, Gladys Knight, and Rupert Holmes. The judges will wear masks covering their faces, and their identities will have to be guessed -- by the sixteen bachelors carefully selected from a pool of twelve thousand applicants. The bachelors will put our judges to the test -- while they themselves compete in the ultimate competition for survival, stranded on an ice floe in the middle of the Arctic Ocean, with no water, no food, and no thumbs, after they undergo a radical procedure perfected in Ancient Egypt. The bachelors on the ice floes will encounter a tribe of penguins -- who all live in one house, with cameras following their every move, as they stop being penguins, and start being real. The raw footage of the penguins' lives will be broadcast on the Internet, and viewers will have the opportunity to e-mail the penguins with instructions about what to do next. One special female viewer will be chosen at random to join the penguins in their Arctic home -- and will participate in the ultimate practical joke. She will have to convince her family that she has fallen in love with the penguin, and will be married at a wedding ceremony next week. If her family attends the wedding, she will win the right to work as Donald Trump's secretary for one year, at a salary of $15,000. If her family does not attend the wedding, they will be dropped from a helicopter, eight hundred miles above the Earth's surface, for a reality show experience like none before: "Eight Hundred Miles Above The Earth," a twenty-second chronicle of the family's adventure falling to the surface, with no parachutes, no food, and just one music CD each. Those CDs will be featured on a special VH1 original program, "Favorite CDs of the Family Falling To Earth," and celebrities like Damon Wayans and the Budweiser Frogs will comment on each track. The artists responsible for the CDs will be reunited for one final concert, live from Madison Square Garden in New York City, where they will serve as the opening act for the ultimate elephant truck-pulling event. "The Elephant." This fall on Fox.

Mr. Drum's Bad Idea

I'd like to see videotaping required for all police interviews, and in return I'd suggest that the 5th Amendment right against self-incrimination be discarded. If police interviews are all recorded and trials are all held in public, it's not at all clear to me what value the 5th Amendment right to silence has anymore.

Before reaching the problems with "discard[ing]" any provision in the Bill of Rights, Mr. Drum should note that the right against compelled self-incrimination does not mean that the police can't compel a confession, it simply means that compelled confessions (and evidence following from the confession) are inadmissible at trial. Mr. Drum's proposal would indeed give us greater visibility of police interrogation, but much of what we'd see would be compelled admissions that wouldn't get thrown out. Even police required to follow Miranda use all sorts of deception and trickery to "persuade" suspects to talk. Video tapes of such might look bad for the officer, but they won't convince a jury to disregard any admissions also caught on tape.

The right to silence is supposed to reduce the inherently coercive pressure of custodial police interrogation, especially for suspects (innocent or not) who are unsophisticated, and likely to believe an officer who insinuates or even states that failing to speak will lead to much, much harsher penalties. Putting it all on tape won't relieve this stark imbalance in pressure, and I seriously doubt it will significantly motivate the police to behave themselves. Nevertheless, video taping interrogations is a very good idea by itself, but certainly not as a substitute for a constitutional right.

Idle Musings on the Supreme Court

The Supreme Court refers to itself on a regular basis. And that, so goes my favorite scholarly adage, is "the merest of truisms." Except that it's not clear what "itself" means. Over time, occupants of seats on the Court change, somewhat continuously, as does the Court's legal turn of mind, its voting patterns, its overarching historical "mission" and its concrete constitutional legacy. Even Justice Scalia, who fits somewhat snugly within the generalized federalism of the "Rehnquist Court," used the phrase "this Court" to refer to Miranda v. Arizona, the hallmark triumph of the Constitution-As-Sword "Warren Court," a case that couldn't be further from Scalia's jurisprudence, and that fueled his vigorous (and beautiful) dissent in Dickerson:

I see little harm in admitting that we made a mistake in taking away from the people the ability to decide for themselves what protections (beyond those required by the Constitution) are reasonably affordable in the criminal investigatory process. [530 U.S. at 464]

Why should Scalia apologize for Justice Warren's opinion in Miranda? Who is this "we" that took anything from the people? No one expects Bush to apologize for President Kennedy's shortcomings. There is no such "Presidency" in the sense that there is a "Supreme Court." The "Presidency" is merely an abstract descriptor, but "the Court" is a singular, perennial institution, whose make-up only changes incidentally, but not essentially.

Now that's not a view I'm committed to, but it's a view that's built into the nature of judicial legitimacy. Legitimate decisions are depersonalized, and a favorite technique used to criticize judicial opinions involves personalizing them, accusing the majority of asserting its "personal policy preferences," as if the right preference is somehow removed from personality, a preference emerging from the judicial institution itself.

Pronouncements of "this Court" echo notions of "found law" and harmonize with the viewpoint that some readings of the Constitution are just wrong. Judges, as we conceive them, are not there to dispense opinions having no better origin than their own whimsy. Just as we expect more than mere conclusions from our adversaries in argument, we expect justices to deliver opinions that have some objective source, like reason and fact, and we expect rationales to follow tracks that we ourselves can trace (perhaps tracks of reasoning that are "public") undiverted by the flaws of individual personality.

As much as one might fault the Court for writing, somewhat transparently, in language that pretends to the formalities of found law and objective justice, I think we'd prefer it to the other extreme, where justices merely assert that they like certain ideas and results best, and think the views of cooky Earl Warren and his ilk were plain stupid. (Consider, for instance, the naked vulnerability of a judicial opinion that cites no authority.) And I think we might need the Court to be a singular, perennial institution, not because it lets us pretend that stare decisis means anything, but because it helps us believe that the Constitution is beyond the faults and limits of individual fancy. One Court channeling one Constitution. Sounds like the basis of a safe, secure nation. Alternatively, a haphazard series of differently reasoning, short-sighted, personally prejudiced old lawyers who've been arguing semantics for 200 years--not so comforting, not so responsive to the political majesty we invest in our great document of justice.

PG Is a Prude

State police have charged a 15-year-old Latrobe girl with child pornography for taking photos of herself and posting them on the Internet. [...]
She has been charged with sexual abuse of children, possession of child pornography and dissemination of child pornography.

And a behind-the-times prude, at that; the rest of the blogosphere passed judgment on this story over a week ago. However, I seem to be one of the few people who thinks that the prosecutor in the case isn't completely wrong.

Most of the incredulity has focused on the charge of sexual abuse, which stems from the young woman's having photographed herself "performing a variety of sexual acts." I agree that this part of the prosecution is absurd, as "self abuse," a euphemism for masturbation, ought not be a crime any more than suicide ought to be.

The possession of child pornography is a little more problematic. If this fifteen-year-old can ensure that the photographs are seen by no one but herself -- a difficult but not impossible requirement -- then there's no reason why she shouldn't be able to possess them. On the other hand, if she used a pornographic picture (i.e. depicting her engaging in sexual practices or exhibiting her genitals) as a desktop image on a computer accessible to others, she is essentially guilty of...

Dissemination of child pornography. This is the charge that is justified by the facts, at least as presented in the article. Actually, I would advise the prosecutor to drop the other charges; they're not only illegitimate, they distract from and undermine the aspect of the case that passes the laugh test.

However, other blawggers disagree even about the dissemination. Michael Froomkin says, "To me this seems a real case of arresting a victim, the person the rule is designed to protect, and a fairly poor use of prosecutorial discretion." Prof. Froomkin's argument is flawed by his making assumptions that are not verified by the few details provided by the article, such as that the dissemination was not connected to profit-making.

One of his suppositions is directly contradicted by the facts we are given; he scoffs at the idea of prosecuting the young woman's 15-year-old boyfriend or girlfriend for having received the pictures, yet the article says "She then sent the photos to people she met in chat rooms." In other words, these were not people she knew, and she was breaking one of the basic rules of internet safety, increasing the likelihood that she might be abducted and assaulted.

Eugene Volokh adds, "[I]t hardly seems to be much of a service to her -- who is after all the supposed victim as well as the perpetrator -- or to the fight against child porn more broadly," though Prof. Volokh premises his disapproval on its being "a full-bore prosecution" rather than "one of those scare-the-kid-a-bit prosecutions."

But as one TalkLeft commenter pointed out: "Seems to me she was distributing child pornography. They are going to aggressively pursue those that received it, so why not charge the distributor?"

This is the crux. As Froomkin admits, "child porn is an unusually strict liability crime, in which possession alone, without intent or even knowledge, constitutes the offense." People who received the photos as attachments and saved them without bothering to click on them later -- as I've done with attachments when in a hurry to clear out my e-mail -- may be in possession of child pornography without intent or knowledge, and subject to prosecution.

The alleged self-pornographer thus put other people at risk of criminal penalties, including fines, prison terms and felony records.

One might argue that the strict liability regime is inappropriate, or that penalties for possession of child pornography depicting teenagers are excessive. Nonetheless, this is the current state of the law. Even if the sentencing judge or jury is sympathetic to these arguments, the law frequently mandates punishment.

The Supreme Court said in Osborne v. Ohio that "[the state] hopes to destroy a market for the exploitative use of children. [...] evidence suggests that pedophiles use child pornography to seduce other children into sexual activity." In other words, the harm exists not only directly to the child depicted in the particular pornographic material, but also indirectly to other children.

Obviously this young woman cannot be tried as an adult, and therefore the punishment she receives is not going to be the same as what is normally meted out to disseminators of child pornography. This is all to the good, and I hope that the end result, if she is found guilty, is more along the lines of forcing her guardian to monitor her activities closely and getting her counseling. But child pornography should not become acceptable merely because the subject of the pornography consents to having it made -- the whole point is that children cannot give meaningful consent to such activity.

April 07, 2004

Playing Hardball

There's an interview over at The Hardball Times, a new baseball site with daily articles from some pretty solid contributors, with the president of Victory Sports, a new cable-TV outlet for the Minnesota Twins (think YES Network in New York). Apparently, the major cable providers in Minnesota are refusing to carry the channel because Victory Sports is charging too much. And so Twins fans have no place to watch the games. I'm taking a class in Communications Law this semester, and we haven't talked at all about these kinds of channel negotiations, but I found the interview pretty compelling as an example of what this kind of negotiation looks like. Just a clip to give you an idea what this stuff is about:

THT: There are similar, team-based television channels in other markets. As you mentioned, the Yankees have the YES Network, for instance. What are some of the other, similar channels to Victory, and how much do they receive from TV outlets?

Cattoor: The Yankees (YES) and Red Sox (NESN) both have their own nets. The Cubs and White Sox are going into Comcast's network in Chicago in 2005. Houston is pursuing theirs also. In contrast to the stadium, where the Twins are one of the last teams to get one, we will be one of the first teams to establish our own network. NESN, we understand, gets over $2. YES, as ruled by the arbitrator, gets $1.93.

I just found the interview interesting, and thought I'd pass along the link. Anyone in favor of more regulation for these kinds of things probably likes that there's no deal in place, because it probably means pressure to force the cable companies to carry the channel and not let the free market work. I don't think I have an opinion either way really -- I just know that if I was a Twins fan (and aren't we all Twins fans really?) I'd be frustrated that I couldn't watch the baseball games.

Today / April 8

This Date In Obscure Legal History Wikipedia Knows But I've Never Heard Of (2002): Ed McMahon files a US$20 million lawsuit against his insurance company and others for alleged breach of contract, negligence and intentional infliction of emotional distress that was allegedly caused by a toxic mold infecting McMahon's Beverly Hills, California home.

April 06, 2004

Grammar and Law

Yesterday, I asked: "can a grammatical prescriptivist embrace legal realism? If there are rules of grammar that posit correctness, must there also be a domain of natural law against which we can judge the rightness of legislation or common law?" Crescateers Will and Amanda responded here and here, and Mr. Sandefur offered some interesting thoughts here. I guess it's only fair that I answer the question myself.

Amanda and Sandefur offer some convincing distinctions between the law and the laws of grammar, but I still think there's significant tension between grammatical prescriptivism and legal realism. By legal realism, I have in mind something like the nihilistic vision of Holmes, that law is merely what is convenient, and has no metaphysical origin beyond the changing judgments of people.

The debate over grammatical correctness is not essentially empircal, but philosophical. For the descriptivist, it's not that correctness can't be proved, it's that correctness doesn't meaningfully refer to linguistic behavior. As I see it, the real question is whether correctness means anything at all. Legal realism, as I understand it, does not provide an account that could distinguish correct laws from wrong ones--assuming all laws in question were effectuated properly (i.e., made by real lawmakers). For legal realism, the rightness of a law properly enacted doesn't seem to be a meaningful notion. The rightness in grammatical prescriptivism goes beyond merely indicating what patterns in language are dominant (if it didn't, there would be no difference between prescriptivism and descriptivism--which, in fact, I sometimes think is true). I do not think it's readily clear how a prescriptivist could on the one hand make sense of "correctness" as a meaningful concept in language but on the other hand deny that some laws can be just bad, even if properly made. Even if language evolves largely beyond our control, we can still select, among many principles of usage, which we think are the proper ones (schools do this all the time) and which aren't. If I were to think Oxford English is superior to, say, African American English, but reject, on philosophical grounds, the notion that some laws are not only different, but sometimes better or worse than others, I think I'd be philosophically confused.

The challenge isn't so much drawing logical distinctions, but figuring out whether one's base, metaphysical assumptions about "correctness" are the same in language and in law. [insert elegant conclusion]

File Sharing Could be Harmless

"Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates," write [an economic study's] authors, Felix Oberholzer-Gee of the Harvard Business School and Koleman S. Strumpf of the University of North Carolina at Chapel Hill.

In the same period that the RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1 billion CDs were downloaded for free. Thus, although 2.6 times the total number of CDs sold were downloaded for free, sales revenue fell by just 6.7 percent

(My emphasis.) Apparently the RIAA is throwing a hissy fit, and has attacked the study's methodology, noting, among other things, that it hasn't been peer reviewed. I admit to being a little confused. If it is in fact the case (perhaps a big if) that file-sharing as now practiced has virutally no impact on record sales, isn't that precisely the sort of information the RIAA would like to have, for its own purposes?

I suppose such information, if true, might raise some slippery-slope concerns (once everyone thinks it's harmless, there will be much more sharing, then we'll really lose money), but those arguments are not being made. Insofar as confirmation of this new study would embarass the RIAA (and it would definitely do that), it will continue to impulsively lash out against potentially legit studies with its quasi-rhetoric, all the while missing the important point that suing hundreds of powerless individuals in the name of artists' rights wouldn't make a lot of sense if artists aren't actually taking a blow. But their reaction manifests virtually no interest in finding out the truth about file-sharing harm. Somebody go peer review that study already.

April 6

This Date in Legal History (1994): Supreme Court Justice Harry A. Blackmun announced his retirement after 24 years. On the same day, the presidents of Rwanda and Burundi were killed in a mysterious plane crash, touching off a genocide that would claim the lives of 800,000 people.

April 05, 2004

Swerve For the Border

I'm sure there are lots of reasons one might want to become a prosecutor--to put dangerous people behind bars, enjoy the histrionics of trial practice, or wield the awesome power of the state. But one rarely mentions the privilege of channeling the public sentimentality of criminal justice--a perk that Kurt Klomberg appears to have enjoyed while prosecuting a mother for having her children blow into an ignition-lock breathalizer because she was too hammered to drive. To drive to Taco Bell, that is:

The nature of this crime is grotesque . . . . Those lives could have ended because their mother, the person they trusted the most, had the munchies.

I don't mean to downplay the gravity of the crime (and I've publicly argued that DUI enforcement should be stepped up) but something about the image of being drunk and hungry for a mexi-melt doesn't exactly inflame my moral indignation.

De Novo Symposium: Internet, Law, & Culture

We have received several great submissions for next week's De Novo Symposium on Internet, Law, & Culture, but we'd love some more. If you are interested, please submit an op-ed length discussion of some issue relating to Internet, Law, & Culture to us in the coming days.

Top Ten Reasons To Submit To Our Symposium (by Jeremy):

10. Your blog averages just 8 readers a day and you want to reach a wider audience.
9. You enjoy subjecting your thoughful analysis to angry attacks from uninformed and unaccountable troublemakers who like to leave comments.
8. The New York Times rejected your piece for being "too factually accurate."
7. You like our delightful color scheme.
6. You thought you remembered reading that we were paying our contributors.
5. You want to be part of a forum that's already had pieces from Howard Bashman, Lawrence Solum, Dahlia Lithwick, Eugene Volokh, and more.
4. You're reassured by our plea for submissions that we probably won't reject yours, and so all your hard work won't have gone to waste.
3. We'll add you to our blogroll (if we feel like it).
2. Free copyediting.
1. Because you like us.

This symposium project is our little experiment for the blogosphere, but it will only work if you all (and those you talk to) want it to work. So, if you want to see this symposium idea continue, please submit or encourage someone you know to do so!

Question 21

When asked to choose between grammatical prescriptivism (there are correct rules) or descriptivism (rules merely predict how people speak), Amanda replies:

What is it with the binary questions? You know I don't like being put to an either/or. Fine, for once, I won't duck. The rules of grammar are objective things that are written down in books.

A follow-up question, if I may (and one that may interest Mr. Sandefur): can a grammatical prescriptivist embrace legal realism? If there are rules of grammar that posit correctness, must there also be a domain of natural law against which we can judge the rightness of legislation or common law?

April 04, 2004

Geekness Pays Off

April 03, 2004

"It's Still Number Twelve To Me"

Since they've just come out, here's a song parody about the U.S. News Law School Rankings.

"It's Still Number Twelve To Me" (to the tune of Billy Joel's "It's Still Rock And Roll To Me")

What's the matter with the kids I'm taking
Are the scores that they have too low?
Should I try to hire one more teacher
'Cause we're moving up the ranks too slow?
How to raise the judges' score they're assessing,
Is hard because the judges aren't doing more than guessing,
Everybody's talking 'bout the new Dean, honey
But it's still number twelve to me.

What's the matter with the Bar/Bri sales rep
Can't we get one who'll make them pay?
I don't want the rate to fall any further
'Cause alumni call me up and say:
"I saw the latest U.S. News says we're dropping,
The check that I just sent you: payment I am stopping"
New prof, new dorm, but Dean was caught with kiddie porn
It's still number twelve to me

Oh, it doesn't matter what they say in the papers
Cause it's only US News that they read
If there's a new list in town
People gather all around
All the anxious feelings numbers can feed
As if one school has to be in the lead...

How about we take a few less students?
Our rates'll fall and ranking will rise
How about we fudge the job percentage?
How'll they know if our report's filled with lies?
Why did number four become number seven?
Do we have a hope of rising one to be eleven?
New books, new course, cafeteria's serving horse
But it's still number twelve to me.

April 02, 2004

Today / April 5

This Date In Legal History (1999): In Laramie, Wyoming, Russell Henderson pleads guilty to kidnapping and felony murder in order to avoid a possible death penalty conviction for the hate crime killing of Matthew Shepard.

April 01, 2004

P2P and Open Source Editorials

Feel a bit left out of the file-sharing copyright debate? Professor Solum, in critiquing Lessig's new book, breaks down some the of major economic arguments and offers his usual rigorous treatment. A must read.

I also noticed, from the same Bookclub post, this fantastic idea from Copyfight's Ernest Miller:

Jeff Jarvis has an excellent idea for another use of Larry's work - the annotated version (Free debate). Those familiar with my writings know that I am a huge fan of annotations, which I also call recipe files or client-side remixes. Jeff asks,

But wouldn't it be great to take a book and break it open at the spine for some back-and-forth?

Why not turn a book into a conversation?

Why not, indeed? Lessig would certainly favor such a concept, I believe. And if he didn't, too bad, the book is already licensed for such a thing. Poor arguments can be pointed out, but so can additional evidence on behalf of particular arguments. In a way, Solum's work is a step in this direction. Who will be the first to add Solum's book club to an edition of Lessig's book? (I don't see a license on your blog, Solum, is that okay with you?) Wouldn't it be great, also, to append all the reviews, negative and positive, as well as Lessig's promotional interviews to the book for easy future reference.

In the spirit of free culture, I offer a broader variation. How about extending the culture of open source software to political argument? Suppose I write an op-ed style critique of, say, some provision of the Digital Millennium Copyright Act. Some other blogger likes it, but thinks I should have included better evidence, or stylized my argument better. Instead of the ordinary blogger critique of quoting me and then making suggestions, why not just rewrite my article, provided I don't mind? The right creative commons license makes this easy. I might call my article "version 1.0" and the next fellow who rewrites it could call it version 1.1. Subsequent revisions of my original article could be version 1.2, 1.3, etc. Or if a third writer wants to revise version 1.1, they would call it 1.1.1. Naming versions like this, combined with blogospheric linking could preserve a pathway of the article's evolution. With any success, the article could improve, or get more interesting.

I suspect that this sort of collaborative revision does not happen now, even on blogs using liberal creative commons licenses, because the blogging culture of attribution and respect requires writers to clearly distinguish between their own writing and the writing they critique. However, by explicitly dedicating a post or an article to the kind of collaborative revision I suggest, any anxiety about tinkering too closely with "someone else's work" should lift.

It's April, Foo

Below, I quoted Anonymous Lawyer's bit about the recruiting coordinator who googled down one of the firm's future associate's blogs. Call me a SUCKER.

In related news, Jack Valenti, of the MPAA, has publicly taken sides with prisoners fighting to "protect their names, their rightful intellectual property," and has launched a campaign to serve process on America's approximately 18 million Jacks. Valenti remarked,

If I stole your first born child, you'd want me to pay for it, right? I'm just asking these thiefs to come clean and pay for what they stole. This country can't tolerate piracy any longer.